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Page 2 CONNECTICUT LAW JOURNAL March 11, 2025
2 MARCH, 2025 351 Conn. 428
State v. Dabate
STATE OF CONNECTICUT v. RICHARD G. DABATE
(SC 20749)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Alexander and Dannehy, Js.
Syllabus
Convicted of murder, tampering with or fabricating physical evidence, and
making a false statement in connection with the shooting death of his wife
and his alleged staging of the crime scene to replicate a home invasion, the
defendant appealed to this court. The defendant claimed, inter alia, that
multiple instances of prosecutorial impropriety deprived him of his right to
a fair trial. Held:
Although the defendant established four distinct instances of prosecutorial
impropriety, this court concluded that those improprieties did not, either
individually or collectively, deprive him of a fair trial.
With respect to certain instances in which the prosecutor allegedly did not
comply with trial court rulings, the prosecutor did not violate those rulings
when he questioned the defendant about his finances and whether he was
a ‘‘ticking time bomb,’’ but the prosecutor’s failure to rephrase his question
about whether the defendant was ‘‘trying to create a little mini Cheshire
scene’’ was improper, as the reference to the word ‘‘Cheshire’’ was in direct
violation of the court’s order not to use that word, and the question was
unnecessarily inflammatory because it compared the defendant to other
notorious offenders or infamous figures.
With respect to certain instances in which the prosecutor allegedly violated
State v. Singh (259 Conn. 693) by purportedly asking the defendant to
comment on other witnesses’ testimony, none of the prosecutor’s questions
violated Singh because the prosecutor did not ask the defendant to characterize another witness’ testimony as wrong, mistaken or a lie, or imply to
the jury that it must find that the witness had lied in order to find the
defendant not guilty; rather, the prosecutor sought to impeach the defendant’s testimony with inconsistencies in light of other evidence, and the
prosecutor’s questions were unlikely to confuse the issues and did not shift
the state’s burden of proof.
With respect to the prosecutor’s allegedly improper use of uncharged misconduct evidence, the prosecutor’s questions regarding the defendant’s
drinking habits, his withdrawing his children from therapy, and the fact that
the children were no longer in his care were proper inquiries for impeachment during cross-examination, as the prosecutor had a good faith basis
for them in light of the evidence, and that line of questioning did not serve
to establish the bad character, propensities, or criminal tendencies of the
defendant.
March 11, 2025 CONNECTICUT LAW JOURNAL Page 3
351 Conn. 428 MARCH, 2025 3
State v. Dabate
The prosecutor’s question regarding whether the defendant had planned to
kill the victim during a trip to Vermont shortly before the murder, however,
was improper, as the prosecutor did not establish a proper foundation for
the question by stating a good faith belief that there was an adequate factual
basis for his inquiry.
With respect to certain alleged improprieties committed by the prosecutor
during closing arguments, although the prosecutor’s comments that the
victim had accused the defendant of stealing money from the family and
that ‘‘truth in our society is under attack’’ were not improper, the prosecutor’s
comments that the defendant was counting on the jury to be gullible, lazy,
and unintelligent were improper, as such comments served to inflame the
jurors’ passions and had the effect of diverting the jurors’ attention from
their duty to decide the case on the basis of the evidence before them.
The prosecutor’s question concerning the defendant’s failure to contact the
police after the defendant read a published newspaper article about the
victim’s murder, which the defense had introduced at trial, did not constitute
an improper comment on the defendant’s exercise of his right to counsel
but, rather, constituted proper impeachment of the defendant with evidence
of his silence prior to his arrest and before his receipt of warnings pursuant
to Miranda v. Arizona (384 U.S. 436).
With respect to the prosecutor’s alleged violation of the rules of disclosure
by failing to disclose the anticipated testimony of a certain expert witness
that the defendant’s injuries appeared to be self-inflicted, that nondisclosure
did not violate Brady v. Maryland (373 U.S. 87) because the testimony was
not exculpatory in nature, but the nondisclosure constituted an impropriety
insofar as the prosecutor had failed to comply with his obligations under
the rule of practice (§ 40-11 (a)) governing disclosure by the prosecuting
authority, as the record indicated that the state was aware of the anticipated
testimony for months prior to the trial and failed to disclose it, even though
it would have been material to the preparation of the defense and was
introduced as evidence in the state’s case-in-chief.
Applying the factors set forth in State v. Williams (204 Conn. 523), this court
concluded that the identified improprieties did not deprive the defendant
of his right to a fair trial because there was not a reasonable likelihood that
the jury’s verdict would have been different in the absence of those improprieties.
This court declined the defendant’s request to exercise its supervisory
authority over the administration of justice to reverse his conviction as
a sanction for the prosecutorial improprieties, as the four instances of
impropriety did not impact the perceived fairness of the judicial system as
a whole or warrant the extraordinary remedy of reversal under this court’s
supervisory authority.
Page 4 CONNECTICUT LAW JOURNAL March 11, 2025
4 MARCH, 2025 351 Conn. 428
State v. Dabate
The trial court did not abuse its discretion in admitting data from the victim’s
Fitbit activity tracker under State v. Porter (241 Conn. 57), as there was ample
evidence in the record to support that court’s findings that the professional
credentials of the state’s expert witness qualified him as an expert, that the
witness’ Fitbit study had been subject to peer review, that the Fitbit was
generally accepted in the scientific community, that the Fitbit had been
tested extensively and deemed accurate, and that the Fitbit had been developed for extrajudicial purposes.
The trial court properly denied the defendant’s motion to suppress a statement that he had made to the police during an interview at the hospital.
There was ample evidence in the record to support the trial court’s factual
findings underlying its determination that the defendant was not in custody
during the hospital interview for purposes of Miranda, and, moreover, the
totality of the circumstances established that the defendant was not in
custody because a reasonable person in the defendant’s position would
not have believed that he was restrained to a degree associated with a
formal arrest.
Argued October 30, 2024—officially released March 11, 2025
Procedural History
Substitute information charging the defendant with
the crimes of murder, tampering with or fabricating
physical evidence, and making a false statement, brought
to the Superior Court in the judicial district of Tolland,
where the court, Hon. Julia DiCocco Dewey, judge trial
referee, denied the defendant’s motion to preclude certain evidence and denied in part his motion to suppress
certain statements; thereafter, the case was tried to the
jury before Klatt, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Trent A. LaLima, with whom was Virginia M. Gillette, for the appellant (defendant).
Nathan J. Buchok, assistant state’s attorney, with
whom was Matthew C. Gedansky, state’s attorney, for
the appellee (state).
Opinion
ALEXANDER, J. A jury found the defendant, Richard
G. Dabate, guilty of, among other offenses, murdering
March 11, 2025 CONNECTICUT LAW JOURNAL Page 5
351 Conn. 428 MARCH, 2025 5
State v. Dabate
his wife in violation of General Statutes § 53a-54a in
connection with a staged invasion of their home in
Ellington. The defendant appeals1 from the judgment
of conviction, claiming that he is entitled to a new
trial for the following reasons: (1) multiple instances
of prosecutorial impropriety deprived him of his right
to a fair trial; (2) the prosecutorial impropriety was so
deliberate and flagrant that this court should exercise
its supervisory authority over the administration of justice to reverse his conviction; (3) the trial court erred
in admitting data obtained from the victim’s Fitbit;2 and
(4) the trial court should have suppressed a statement
given to the police because it was obtained in violation
of his Miranda3 rights. Although we agree with the defendant that the prosecutor engaged in multiple acts of
impropriety at trial that we consider troubling, we conclude that those improprieties did not deprive the defendant of a fair trial. We also reject the defendant’s other
claims of error. Accordingly, we affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. The defendant and the victim, Connie Dabate,
were married in 2003 and had two children. In 2005,
the defendant began an extramarital affair with Sara
Ganzer. In June, 2015, the defendant learned that
Ganzer was pregnant with his child. At that time, the
defendant informed her of his intention to divorce the
victim and that he had moved one half of his personal
belongings out of the marital home. However, the defendant had lied to her and had not contacted a divorce
attorney. The defendant did not attempt to divorce the
1
The defendant appealed directly to this court from the judgment of
conviction pursuant to General Statutes § 51-199 (b) (3).
2
A Fitbit is a ‘‘device that continuously tracks the wearer’s steps and
interfaces with the wearer’s phone or computer.’’ State v. Burch, 398 Wis.
2d 1, 6 n.1,
961 N.W.2d 314 (2021), cert. denied, U.S. ,
142 S. Ct. 811,
211 L. Ed. 2d 503 (2022).
3
Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
Page 6 CONNECTICUT LAW JOURNAL March 11, 2025
6 MARCH, 2025 351 Conn. 428
State v. Dabate
victim because he was afraid that a divorce would be
destructive to his personal finances and familial relationships. Motivated by these fears, the defendant instead
decided to kill the victim and to make it appear as if
an intruder had killed her in a home invasion.
On December 23, 2015, the victim left for the gym at
8:46 a.m. and, when she discovered that her gym class
had been cancelled, returned home at 9:18 a.m. She
then spoke to her mother on the phone, posted on
Facebook, and messaged a friend. The defendant did
not leave home that morning. He opened the basement
door eight times and armed and disarmed the home
security system multiple times. The defendant also
placed his wallet outside near the basement bulkhead
stairs. He then spent time answering work emails, playing music on his phone, and, when he heard the victim
come home earlier than he expected, he checked the
gym schedule. At 10:05 a.m., the defendant lured the
victim to the basement and used a gun purchased a few
months earlier4 to shoot her. The Fitbit that the victim
wore on her hip stopped registering any steps at that
time.
To achieve the appearance of a home invasion, the
defendant tied loose zip ties around his neck, ankles,
and wrists, and used another zip tie to bind one of
his wrists to a folding chair. The defendant also self-inflicted stab wounds to his thighs, chest, and finger
with a box cutter. He activated the home’s panic alarm
and called 911. The defendant told the responding
police officers that an intruder dressed in camouflage
had entered their home and killed the victim. The police
found the victim’s body, the firearm used to kill the
In October, 2015, the victim and the defendant purchased a firearm after
4
the defendant’s vehicle had been vandalized several times. The defendant
also purchased a second firearm; he stored one in a safe in the basement
of their home and the other in the master bedroom closet.
March 11, 2025 CONNECTICUT LAW JOURNAL Page 7
351 Conn. 428 MARCH, 2025 7
State v. Dabate
victim, a butane torch, a box cutter, burnt debris, and
multiple droplets of blood in the basement.
The defendant was then transported to Hartford Hospital. Two state police detectives, Jeffrey Payette and
Brett Langevin, interviewed the defendant at the hospital and obtained his statement about the events of that
morning.5 During the interview, the defendant did not
initially reveal his extramarital affair.6 Because the
detectives began to note inconsistencies in the defendant’s account of the morning’s events, they told him
that his story would easily be contradicted with electronic records. The defendant ultimately requested counsel, and the detectives ended the interview.
Following an investigation, the police arrested the
defendant in April, 2017. The state charged the defendant with one count of murder in violation of § 53a-
54a, one count of tampering with or fabricating physical
evidence in violation of General Statutes § 53a-155, and
one count of making a false statement in violation of
General Statutes § 53a-157b. Before trial, the state filed
notices of its intention to introduce evidence of uncharged
misconduct regarding (1) marital discord and infidelities,
and (2) the defendant’s financial irregularities. Over the
defendant’s objection, the trial court7 allowed the state
to introduce evidence regarding the marital infidelity.
5
The defendant told the detectives that he had been attacked by a male
intruder who had been hiding in an upstairs closet. He claimed that the
intruder chased the victim into the basement and shot her with the firearm
that belonged to the defendant and the victim. The defendant then stated
that the intruder tied him up and began to cut and burn him with a box
cutter and a blowtorch until he managed to push the blowtorch toward the
intruder’s face, causing the intruder to flee, and that he then called the police.
6
The defendant first claimed that he and the victim, unable to have another
child, had arranged for Ganzer to be their surrogate. He then confessed that
he had been having an affair ‘‘off and on [for] seven years’’ with Ganzer
and that she was pregnant.
7
All references in this opinion to the trial court are to the Honorable Julia
DiCocco Dewey, judge trial referee, with respect to pretrial motions and to
Judge Klatt with respect to the jury trial.
Page 8 CONNECTICUT LAW JOURNAL March 11, 2025
8 MARCH, 2025 351 Conn. 428
State v. Dabate
The court also permitted the state to inquire about
assets in the victim’s estate under the defendant’s control but precluded the state from introducing evidence
regarding an alleged embezzlement, a loan, the defendant’s depletion of marital assets, and other financial
misconduct after the victim’s death.
The defendant moved to suppress his statement to
the police during the hospital interview, claiming that
he was in custody and that Miranda warnings were
required. After an evidentiary hearing, the trial court
denied the motion to suppress with respect to the majority of his statement, finding that the defendant was not
in custody during the hospital interview.
The defendant also filed a motion in limine to preclude the admission of data from the victim’s Fitbit and
requested a Porter8 hearing at which the state would
be required to demonstrate the reliability of the evidence. The trial court granted the defendant’s request
for a Porter hearing but, after conducting the hearing,
denied the defendant’s motion to preclude the Fitbit
evidence, finding the evidence scientifically reliable on
the basis of the testimony of Keith Diaz, a professor of
behavioral medicine at Columbia University Medical
Center.
The case was subsequently tried to a jury in a highly
publicized trial. The state sought to prove that the defendant had murdered the victim and staged the home
invasion to conceal his involvement in the crime. The
state claimed that the defendant was motivated by his
desire to extricate himself from his marriage without
the need for a messy divorce, which inevitably would
have exposed his extramarital affair, the unexpected
pregnancy, and his financial difficulties. The state
advanced this theory using, among other evidence, the
8
State v. Porter, 241 Conn. 57,
698 A.2d 739 (1997), cert. denied,
523 U.S.
1058,
118 S. Ct. 1384,
140 L. Ed. 2d 645 (1998).
March 11, 2025 CONNECTICUT LAW JOURNAL Page 9
351 Conn. 428 MARCH, 2025 9
State v. Dabate
defendant’s statement and testimony from medical personnel who had treated him, a state police officer whose
canine did not detect the scent of a third person at
the house, and an examiner with the state forensic
laboratory who found the defendant’s DNA on the basement safe, the back of the folding chair, the handle of
the gun, and the box cutter. The state also relied on
evidence to establish a timeline that contradicted the
defendant’s version of events. This evidence included
movement data from the victim’s Fitbit that conflicted
with the defendant’s statement of when the shooting
occurred and his claim that the victim had run from
the intruder into the basement. The jury returned a
verdict of guilty on all counts. The trial court rendered
judgment in accordance with the jury’s verdict and sentenced the defendant to a total effective sentence of
sixty-five years of imprisonment. This direct appeal
followed.
I
PROSECUTORIAL IMPROPRIETY CLAIMS
We first address the defendant’s claim that he is entitled to a new trial because the prosecutor, the state’s
attorney for the judicial district of Tolland, Matthew
Gedansky, committed numerous instances of impropriety. He contends that these improprieties (1) collectively deprived him of his due process right to a fair
trial under the fourteenth amendment to the United
States constitution, and (2) warrant reversal as a sanction pursuant to our supervisory authority over the
administration of justice. The defendant alleges twelve
instances of prosecutorial impropriety that generally
are encompassed within six categories. These include
when the prosecutor (1) did not follow court rulings,
(2) repeatedly asked the defendant to comment on the
veracity of other witnesses’ testimony in violation of
State v. Singh, 259 Conn. 693,
793 A.2d 226 (2002), (3)
Page 10 CONNECTICUT LAW JOURNAL March 11, 2025
10 MARCH, 2025 351 Conn. 428
State v. Dabate
used uncharged misconduct evidence without providing advance notice, (4) made unduly inflammatory comments during summation, (5) commented on the defendant’s assertion of his right to counsel, and (6) violated
disclosure requirements under both our rules of practice and Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963). We conclude that the defendant
has established four distinct instances of prosecutorial
impropriety but that they neither individually nor collectively deprived him of a fair trial. Additionally, although
we do not condone Gedansky’s conduct in the prosecution of this case, we nevertheless conclude that it does
not warrant the extraordinary remedy of reversal under
our supervisory authority.
When considering a prosecutorial impropriety claim,
the court engages in a two step process. We must determine ‘‘(1) whether [impropriety] occurred in the first
instance; and (2) whether that [impropriety] deprived
a defendant of his due process right to a fair trial.’’
(Internal quotation marks omitted.) State v. Coney, 266
Conn. 787, 808,
835 A.2d 977 (2003). It is the defendant’s
burden to satisfy both steps. See, e.g., State v. O’Brien-Veader, 318 Conn. 514, 524,
122 A.3d 555 (2015). With
respect to the second step, we must examine not only
whether any individual impropriety deprived the defendant of his right to a fair trial, but also whether ‘‘the
cumulative effect of multiple improprieties . . .
deprived [him] of his . . . right to a fair trial. . . . To
[do so], we must determine whether the sum total of
[the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair . . . .’’ (Internal quotation marks omitted.) State v. Weatherspoon, 332 Conn.
531, 556,
212 A.3d 208 (2019). We review the instances
of impropriety in the context of the entire trial and not
in a vacuum. See, e.g., State v. Fauci, 282 Conn. 23, 45,
917 A.2d 978 (2007).
March 11, 2025 CONNECTICUT LAW JOURNAL Page 11
351 Conn. 428 MARCH, 2025 11
State v. Dabate
A
Analysis of Alleged Instances of Impropriety
1
Noncompliance with Court Rulings
First, the defendant claims that the prosecutor intentionally violated court rulings during cross-examination
when he (1) questioned the defendant about inadmissible financial evidence, (2) referred to a ‘‘ticking time
bomb,’’ which was a phrase used in an inadmissible
note stored on the defendant’s phone, and (3) failed to
rephrase the question, ‘‘[w]ere you trying to create a
little mini Cheshire9 scene?’’ despite the trial court’s
order not to include ‘‘that one word . . . .’’ Having
reviewed these claims in the context of the full record,
we conclude that the prosecutor’s failure to rephrase
the ‘‘Cheshire’’ question was improper. Additional relevant facts will be set forth in the context of each claim.
It is well settled that a prosecutor’s failure to obey
a trial court order concerning the admissibility of evidence, either while examining a witness or during argument, constitutes improper conduct. See, e.g., State v.
Ortiz, 280 Conn. 686, 704,
911 A.2d 1055 (2006); see
also State v. Reynolds, 118 Conn. App. 278, 292,
983
A.2d 874 (2009) (purposeful attempt by prosecutor to
include inadmissible evidence ‘‘may entitle the defendant to a new trial’’ (internal quotation marks omitted)),
cert. denied, 294 Conn. 933,
987 A.2d 1029 (2010); State
v. Williams, 102 Conn. App. 168, 176,
926 A.2d 7 (‘‘evidentiary violations of a court order should be reviewed
as prosecutorial [impropriety], not evidentiary errors’’),
9
The term ‘‘Cheshire,’’ as used in this context, refers to a well-known
and especially brutal home invasion in Cheshire that resulted in multiple
fatalities. See generally State v. Komisarjevsky, 338 Conn. 526,
258 A.3d
1166, cert. denied, U.S. ,
142 S. Ct. 617,
211 L. Ed. 2d 384 (2021);
State v. Hayes, Superior Court, judicial district of New Haven, Docket No.
CR-XX-XXXXXXX (June 30, 2010).
Page 12 CONNECTICUT LAW JOURNAL March 11, 2025
12 MARCH, 2025 351 Conn. 428
State v. Dabate
cert. denied, 284 Conn. 906,
931 A.2d 267 (2007). Whether
a prosecutor’s improper comment or question has
affected a defendant’s due process rights is case specific
and ‘‘turns on the degree to which the breach undermines a trial court’s ruling that protects the integrity
of the fact-finding process by restricting the admission
of unreliable or unduly prejudicial evidence.’’ State v.
O’Brien-Veader, supra, 318 Conn. 534. For a breach to
constitute prosecutorial impropriety, the trial court’s
ruling must be unambiguous; an initially ambiguous
order may be rendered ‘‘unambiguous following [an]
extended colloquy with counsel . . . .’’ State v. Martinez, 319 Conn. 712, 731,
127 A.3d 164 (2015).
We acknowledge, however, that ‘‘[a] prosecutor’s advocacy . . . may occasionally drive him or her close to
the line drawn by a trial court order regarding the use
of certain evidence.’’ State v. O’Brien-Veader, supra,
318 Conn. 533. As such, a prosecutor can mitigate an
inadvertent reference to inadmissible evidence by an
attempt to correct that mistake. See, e.g., State v.
Enrique F., 146 Conn. App. 820, 831,
79 A.3d 140 (2013),
cert. denied, 311 Conn. 903,
83 A.3d 350 (2014).
The defendant first claims that the prosecutor violated
the trial court’s order precluding discussion of the
defendant’s financial irregularities by questioning him
about the finances of the victim’s estate in the presence
of the jury. The trial court had, in ruling on the admissibility of the uncharged misconduct evidence, precluded
the state from introducing evidence concerning an alleged
embezzlement from the defendant’s employer, a loan
the defendant took out shortly after Ganzer became
pregnant, and the depletion of estate assets that occurred
when the defendant named himself as a beneficiary of
the victim’s life insurance policy. During cross-examination, after the defendant testified that the victim did
not make much more money than he did, the prosecutor
stated: ‘‘I mean . . . you’ve seen the financial analysis
March 11, 2025 CONNECTICUT LAW JOURNAL Page 13
351 Conn. 428 MARCH, 2025 13
State v. Dabate
in this case.’’ The prosecutor then withdrew the question after defense counsel objected.10
Read in context, we agree with the state that the
prosecutor was referencing only the portion of the
financial analysis showing that the victim made more
money than the defendant prior to her death, which
had not been excluded from evidence. Although the trial
court precluded questions on certain specific financial
topics, it did not entirely prohibit the state from asking
questions regarding the defendant’s finances. Accordingly, we conclude that the prosecutor’s questions
about the victim’s income relative to that of the defendant did not constitute prosecutorial impropriety.
We next turn to the defendant’s claim that the prosecutor violated a trial court order when he asked the
defendant on cross-examination if he was a ‘‘ticking
time bomb . . . .’’ The trial court had precluded the
admission of a note recovered from the defendant’s cell
phone in which he had described himself as a ‘‘ticking
time bomb.’’ The trial court determined that the note
was just ‘‘random thoughts’’ and not relevant. The next
day, during cross-examination, the prosecutor asked
the defendant: ‘‘You were a ticking time bomb . . .
were you not?’’ Defense counsel objected to this question, and the trial court sustained the objection. The
10
The defendant also claims that the prosecutor disregarded the trial
court’s ruling when the prosecutor asked Ganzer: ‘‘How about after the
murder, did [the defendant] give you any money?’’ Although the defendant
had objected to the state’s introduction of evidence regarding the defendant’s
finances or financial transactions after the victim’s death, there had been
no ruling on the objection when the prosecutor had questioned Ganzer.
The defendant contends that, because there was an objection pending and
because the prosecutor should have asked the court to excuse the jury prior
to asking the question, it was improper. We disagree. Although the prosecutor
asked the question in the presence of the jury, the trial court allowed the
prosecutor to ask the question after overruling defense counsel’s relevancy
objection. As such, we conclude that the prosecutor’s question to Ganzer
did not violate a court order.
Page 14 CONNECTICUT LAW JOURNAL March 11, 2025
14 MARCH, 2025 351 Conn. 428
State v. Dabate
prosecutor then rephrased the question. The state
claims that the prosecutor’s use of the phrase ‘‘ticking
time bomb’’ does not constitute prosecutorial impropriety because the trial court’s order did not bar the use
of that phrase, and the prosecutor’s question did not
reveal the existence of the inadmissible note to the jury.
We agree.
Viewed in context, the prosecutor’s question did not
suggest that the phrase ‘‘ticking time bomb’’ was derived
from otherwise inadmissible evidence. There were no
specific references to the note itself and no reasonable
probability that this phrase tainted the jury’s verdict.
See, e.g., Chambliss v. Harrington, Docket No. CV 09-
6804-DOC (OP), 2011 WL 5554023, *8 (C.D. Cal. July
22, 2011) (there was no impropriety when prosecutor
did not directly reference precluded evidence); cf. State
v. O’Brien-Veader, supra, 318 Conn. 537–38 (there was
impropriety when prosecutor stated, ‘‘[a]nd now, the
records aren’t allowed to come in,’’ because comment
conveyed existence of inadmissible evidence to jury
(emphasis omitted; internal quotation marks omitted));
State v. Maguire, 310 Conn. 535, 559,
78 A.3d 828 (2013)
(there was impropriety when prosecutor stated, ‘‘[defensecounsel is] asking [the witness] about the full interview,
and that’s not in evidence,’’ because that comment indicated that redacted portions of interview transcript
refuted defense counsel’s assertion). The phrase ‘‘ticking time bomb’’ is not unique or unusual, and nothing
in the question before the jury indicated that its basis
was a note on the defendant’s phone or any other inadmissible evidence.11
The defendant also claims that the prosecutor committed an impropriety by failing to rephrase a question
11
We recognize, however, that, had the objection not been sustained, and
had the defendant provided an inconsistent answer, the prosecutor might
have attempted to use the inadmissible note to impeach the defendant. We
caution against a tactic of using a specific phrase in an inadmissible document to open the door to impeachment.
March 11, 2025 CONNECTICUT LAW JOURNAL Page 15
351 Conn. 428 MARCH, 2025 15
State v. Dabate
after express direction from the trial court to do so.
During cross-examination, the prosecutor asked the
defendant: ‘‘You made a little fire. Were you trying to
create a little mini Cheshire scene? Is that what you
were trying to do?’’ (Emphasis added.) Defense counsel
objected, and the trial court directed the prosecutor to
rephrase the question not to include ‘‘that one word
. . . .’’ (Emphasis added) The prosecutor then asked:
‘‘Were you trying to create a little mini Cheshire scene?’’
Defense counsel objected again, and the trial court clarified that ‘‘references to other criminal scenes are not
allowed. Other than that, rephrase the question, and
you can ask it.’’ We agree with the defendant that the
failure to properly rephrase this question violated the
court’s order.
The state characterizes the prosecutor’s conduct as
a minor transgression, urging us to accept that the prosecutor, in the heat of cross-examination, simply misapprehended which word the trial court had deemed
objectionable. The state’s reliance on State v. O’Brien-Veader, supra, 318 Conn. 534, for the proposition that
‘‘[t]he mere failure to correctly rephrase a question in
the heat of cross-examination does not constitute the
kind of disregard of a court order rising to the level of
impropriety’’ is, however, misplaced. In O’Brien-Veader,
this court considered whether the prosecutor’s questions during cross-examination ran afoul of the trial
court’s order that hypothetical questions on direct
examination must be based on facts in evidence, with
greater latitude permitted on cross-examination. Id.,
539. We observed that the order was ‘‘initially hazy’’;
id., 541; and ‘‘implicitly invited the use of extra-record
facts in hypotheticals,’’ rendering the ‘‘prosecutor’s
questions about . . . trivial matters’’ not impropriety,
even if they may have violated the initial order. Id.,
540–41.
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The present case, however, does not involve the same
kind of ambiguity because the trial court’s order with
respect to the word ‘‘Cheshire’’ was not at all hazy. The
state’s claim that the prosecutor could not have known
which word the trial court had deemed objectionable
strains credulity, as does the state’s defense of the question on appeal as not apt to inflame the jurors’ passions.
There can be no legitimate doubt that the word ‘‘Cheshire’’ was the offending word in the trial court’s ruling,
given the singular meaning of that term in the parlance
of Connecticut’s criminal justice system and the infamy
of the crimes that occurred in Cheshire. It is notable
that the prosecutor, the state’s attorney for the judicial
district of Tolland, despite now claiming that the trial
court’s instruction was unclear, failed to seek clarification and, instead, repeated the question verbatim. As
such, the prosecutor’s reference to ‘‘Cheshire’’ violated
the trial court’s order, and we conclude that the prosecutor’s failure to correctly rephrase the question constituted impropriety.
In referring to a ‘‘mini Cheshire,’’ the prosecutor’s
question was unnecessarily inflammatory because it
compared the defendant to other notorious offenders
or infamous figures. See, e.g., Shurn v. Delo, 177 F.3d
662, 667 (8th Cir.) (it was improper to link defendant
with Charles Manson), cert. denied, 528 U.S. 1010,
120
S. Ct. 510,
145 L. Ed. 2d 395 (1999); United States v.
Steinkoetter, 633 F.2d 719, 720 (6th Cir. 1980) (it was
improper to compare defendant to Pontius Pilate and
Judas Iscariat because that rhetoric had ‘‘strong prejudicial overtones’’); United States v. Hawkins, 480 F.2d 1151,
1154 (D.C. Cir. 1973) (it was improper to compare defendant’s assertion of insanity defense to infamous cases
in which juries rejected that defense); United States v.
Phillips, 476 F.2d 538, 538–39 (D.C. Cir. 1973) (there
was improper analogy drawn between defendant’s charges
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State v. Dabate
and those involving Sirhan Sirhan, James Earl Ray, Richard Speck, and Jack Ruby).
The state argues that the question was not improper
because it neither compared the defendant to the perpetrators of the Cheshire murders nor suggested that the
crime was similar to those murders, and because it
was reasonable to inquire whether the defendant was
attempting to recreate the Cheshire crime scene given
the evidence at trial. We disagree. First, the prosecutor’s
question directly asked the defendant if he was attempting
to recreate the Cheshire crime scene, which, at the very
least, inferentially connected the defendant’s actions
to those of the Cheshire defendants. Second, there is
nothing reasonable about the inquiry based on the evidence, and, therefore, the second offered ground does
not mitigate the inflammatory nature of the question
itself, particularly given the notoriety the term ‘‘Cheshire’’ holds in Connecticut. Accordingly, we conclude
that the prosecutor’s reference to a ‘‘mini Cheshire’’
was in direct violation of the trial court’s ruling and,
therefore, was improper.
2
Singh Violations
We next turn to the defendant’s claim that the prosecutor improperly asked him to comment on other witnesses’ testimony on several occasions in violation of
State v. Singh, supra,259 Conn. 693. The defendant relies
on four specific instances when the prosecutor asked
him to comment on (1) police testimony, (2) parts of
his hospital interview, (3) the time data on the victim’s
phone compared to other exhibits, and (4) other electronic exhibits.12 In response, the state contends that
12
The defendant also raises five additional Singh violations, none of which
was objected to at trial. The defendant has failed to identify the specific
questions he deems improper and has not supported these additional allegations with relevant citations to the record and to legal authority. We decline
to address these five alleged violations because they are inadequately briefed
and, therefore, abandoned. See, e.g., Estate of Rock v. University of Connecticut, 323 Conn. 26, 33,
144 A.3d 420 (2016).
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State v. Dabate
the prosecutor did not ask the defendant to characterize
another witness’ testimony as wrong, mistaken, or a
lie, which would violate Singh. The state argues that,
instead, the prosecutor was simply impeaching the
defendant’s testimony with inconsistencies based on
other evidence in the case. We agree with the state.
In Singh, this court held that it was improper for the
prosecutor to ask a witness to ‘‘characterize another
witness’ testimony as a lie, mistaken or wrong,’’ and
then to argue during summation that the jury could find
the defendant not guilty only if it found that the other
witnesses had lied. State v. Singh, supra,259 Conn.
712. Our holding was based on two reasons: (1) matters
of credibility are the province of the jury, and (2) juries
should not be told that they must find that a witness
had lied in order to find a defendant not guilty, as it
distorts a prosecutor’s burden of proof. See id., 707–10.
In determining whether a Singh violation has occurred,
we view the prosecutor’s questions and comments in
their totality, even if ‘‘no single comment in isolation
may have violated the rule articulated in Singh . . . .’’
State v. Albino, 312 Conn. 763, 787,
97 A.3d 478 (2014);
see id., 788 (prosecutor violated Singh by ‘‘stacking the
testimony of every single state witness . . . against
that of the defendant’’ such that jury could have deduced
that, to find defendant not guilty, it must conclude that
every other witness had lied).
We now turn to the defendant’s four allegations of
Singh violations. First, during his cross-examination of
the defendant, the prosecutor posited: ‘‘And you know
three different [police] canine handlers gave testimony
[that] there was no exit trail out of that house. . . .
And you know, because you heard the testimony that
Trooper [Ryan] Cloukey and [his canine] went from the
bulkhead, followed the scent trail to the wallet and to
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State v. Dabate
you two different times.’’ Defense counsel objected,
and the trial court sustained the objection.
Second, the prosecutor played portions of an audio
recording of the defendant’s hospital interview to impeach
his trial testimony with a prior inconsistent statement.
At one point, it played for a longer period of time than
the trial court had expected, prompting the court to
state: ‘‘Counsel, you got a question, you ask it. You’re
not going to replay the entire exhibit. . . . You went
way beyond from what I got from your last question.’’
The prosecutor was then allowed to continue his questioning.
Third, the prosecutor showed the defendant photos
of the GPS coordinates and time logs from the victim’s
phone and asked the defendant: ‘‘What’s the time on
that time stamp? . . . And, then, if we go to the end
when she leaves the [gym], what’s that time stamp . . .
?’’ The procecutor then asked the defendant: ‘‘The GPS
location of her phone matches with the [gym] photos,
doesn’t it?’’ Defense counsel objected to the prosecutor’s question, claiming that he was ‘‘asking [the defendant] to comment on other people’s exhibits.’’ The trial
court sustained the objection.
Fourth, the prosecutor asked the defendant: ‘‘And
you also know that the last movement upstairs by the
alarm . . . by the motion detector was at 9:34, between
9:34 and 9:36.’’ Defense counsel objected, and the trial
court sustained the objection, stating: ‘‘[C]ounsel seems
to be referring to other witnesses’ testimony and exhibits . . . . I’ll sustain the objection as to that because
a witness cannot be asked to characterize another witness’ testimony. Rephrase.’’
We conclude that the prosecutor did not pose questions to the defendant that constituted Singh violations.
The prosecutor did not ask the defendant to characterize another witness as lying or wrong, or imply to the
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State v. Dabate
jury that it must find that the witness lied to find the
defendant not guilty. To the extent that the prosecutor’s
questions were phrased objectionably and inartfully, it
is well established that not every objectionable question
rises to the level of prosecutorial impropriety. See, e.g.,
State v. Pjura, 200 Conn. App. 802, 816,
240 A.3d 772,
cert. denied, 335 Conn. 977,
241 A.3d 131 (2020). Rather,
‘‘[o]ur rules of practice provide a means to prevent
improper questions from being answered’’ because ‘‘[i]t
would be a rare trial . . . if counsel for one side or
the other did not pose an objectionable question . . . .’’
(Internal quotation marks omitted.) Id. Thus, it is notable that the defendant did not answer any of the
objected to questions. Under these circumstances, we
conclude that no Singh violations occurred because
the prosecutor’s questions were unlikely to confuse the
issues for the jury and did not shift the prosecutor’s
burden of proof.
We also disagree with the defendant’s reliance on
State v. Albino, supra, 312 Conn. 763, to support his
argument that, although no single instance violated the
Singh rule, the combined instances constituted impropriety when viewed in their totality. Albino is distinguishable from the present case because the prosecutor’s
comments in that case made a direct connection between
the defendant’s acquittal and the credibility of every
other witness. See id., 788. Hence, when the prosecutor
in Albino argued that the defendant had characterized
other witnesses’ testimony as a lie, the jury undoubtedly
could have inferred that the prosecutor was arguing
that, to find the defendant not guilty, it would have to
conclude that every other witness had lied. See id. In
contrast, the prosecutor in the present case did not
connect the prospect of the defendant’s acquittal with
the credibility of other witnesses. Instead, the prosecutor asked the defendant to listen to or look at evidence
that contradicted his testimony and statements. The
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State v. Dabate
prosecutor also did not argue that the defendant was
characterizing another witness as a liar, which is impermissible under Singh. A prosecutor’s asking an objectionable question does not always rise to the level of an
impropriety, particularly when the defendant ultimately
did not answer the question. Accordingly, we conclude
that none of the challenged questions was a Singh violation.
3
Improper Use of Uncharged Misconduct Evidence
Next, the defendant claims that he did not receive
notice of uncharged misconduct introduced by the prosecutor during his cross-examination of the defendant
relating to the defendant’s removal of his children from
therapy and the fact that the victim’s family was raising
his children, arguments between the defendant and the
victim concerning the defendant’s drinking habits in the
months before the murder, and whether the defendant
planned to kill the victim while on a trip to Vermont
days before the murder. During trial, defense counsel
objected to the prosecutor’s questions regarding the
uncharged misconduct, and the trial court sustained all
of those objections, except for a brief reference to the
defendant’s drinking habits. We conclude that the question regarding the Vermont trip was improper.
During cross-examination, an attorney may ask questions, including those concerning uncharged misconduct, to impeach a witness if there is a good faith belief
as to their factual predicate. See Conn. Code Evid. § 6-
6 (b) (1); State v. Barnes, 232 Conn. 740, 747,
657 A.2d
611 (1995). Such questions may exceed the scope of
direct examination and refer to facts not in evidence
if they relate to the credibility of a criminal defendant’s
direct testimony. See, e.g., State v. Diaz, 348 Conn.
750, 775–76,
311 A.3d 714 (2024);. However, ‘‘extrinsic
evidence of such acts is generally inadmissible.’’ State
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State v. Dabate
v. Annulli, 309 Conn. 482, 492,
71 A.3d 530 (2013); see
Conn. Code Evid. § 6-6 (b) (2); cf. Hicks v. State, 287
Conn. 421, 451,
948 A.2d 982 (2008) (describing when
prior acts of misconduct can be proven by extrinsic
evidence).
The prosecutor’s questions regarding the children
and the arguments between the defendant and the victim concerning the defendant’s drinking habits were
proper subjects of cross-examination. Although the
defendant contends that the prosecutor was improperly
introducing character evidence13 regarding his drinking
habits, his withdrawing the children from therapy, and
the fact that the children were no longer in his care,
the defendant had previously testified at length during
direct examination regarding his relationship with his
family and the well-being of his children. See State v.
Diaz, supra, 348 Conn. 775–76. These inquiries by the
prosecutor, therefore, had a good faith basis in the
evidence and served to impeach the defendant’s testimony. They did not prove the bad character, propensity,
or criminal tendencies of the defendant. As such, they
did not constitute prosecutorial impropriety.
With respect to the prosecutor’s cross-examination
of the defendant regarding his intentions during the
Vermont trip, we agree with the defendant that the
prosecutor did not establish ‘‘a proper foundation for
the [question] by stating a ‘good faith belief’ that there
[was] an adequate factual basis for his inquiry.’’ State
v. Barnes, supra,232 Conn. 747. We disagree with the
state’s argument that the prosecutor’s good faith belief
was grounded in evidence that had been precluded by
the trial court. The state argues that the defendant had
been conducting Internet searches about methods of
13
Under § 4-5 of the Connecticut Code of Evidence, ‘‘[e]vidence of other
crimes, wrongs or acts of a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person,’’ with limited exceptions
not relevant to this case. Conn. Code Evid. § 4-5 (a).
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State v. Dabate
poisoning someone before the Vermont trip and that
these searches provided a good faith basis for this
inquiry. Those Internet searches, however, lack a temporal connection to the Vermont trip because they were
performed multiple months prior to the murder, and
there was no other evidence to suggest that the defendant had planned to kill the victim on that trip. See
State v. Payne, 260 Conn. 446, 456,
797 A.2d 1088 (2002)
(prosecutor committed impropriety when he told jury
that ‘‘[the defendant] probably got himself involved in
another robbery a couple of days later’’ because there
was lack of evidence for that statement (emphasis omitted; internal quotation marks omitted)). Accordingly,
we conclude that the question regarding the defendant’s
intentions during the Vermont trip was improper.
4
Improprieties During Summation
The defendant next claims that the prosecutor made
improper comments during summation, namely, stating
during opening summation that the victim had accused
the defendant of stealing money from their family,
arguing during rebuttal summation that ‘‘truth in our
society is under attack,’’ which included references to
‘‘lying’’ by ‘‘politicians,’’ and suggesting during rebuttal
summation that the defendant wanted a jury that was
unintelligent, lazy, and gullible. The defendant argues
that each of these statements was improper and
intended to inflame the jurors’ passions.
The record reveals the following additional relevant
facts. During opening summation, the prosecutor
argued that the victim had ‘‘claimed [the defendant]
was stealing money from the family.’’ This statement
referred to a note written by the victim indicating that
the defendant had been stealing money from her; the
trial court had admitted that note into evidence for the
limited purpose of proving the victim’s state of mind.
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State v. Dabate
Defense counsel objected to this argument, and the trial
court gave a curative instruction that the jury could
consider that evidence only for the limited purpose of
establishing the victim’s state of mind and not for the
truth of the matter asserted.
The defendant also claims that the prosecutor made
two improper comments during rebuttal summation.
First, the prosecutor argued that ‘‘truth in our society
is under attack’’ and referenced individuals such as
‘‘politicians’’ who are ‘‘lying more often than they used
to.’’ Second, the prosecutor told the jurors: ‘‘You were
picked for this jury by the state because of your intelligence and your life experience. The defendant is counting on you not to be intelligent here, to not think this
through. The state is counting on you to be diligent in
putting this puzzle together. The defendant is counting
on you to be lazy or, I guess, just not care. . . . The
state is counting on you to use your common sense.
The defendant wants you to speculate and guess and
be gullible and leave your common sense outside the
courtroom.’’ (Emphasis added.) Defense counsel objected,
and the trial court instructed the jury that the arguments
of counsel do not constitute evidence.
‘‘[T]he prosecutor has a heightened duty to avoid
argument that strays from the evidence or diverts the
jury’s attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the
people of the [s]tate, who seek impartial justice for the
guilty as much as for the innocent. . . . By reason of
his office, he usually exercises great influence [on]
jurors. . . . [Although] the privilege of counsel in
addressing the jury should not be too closely narrowed
or unduly hampered, it must never be used as a license
to state, or to comment [on], or to suggest an inference
from, facts not in evidence, or to present matters [that]
the jury ha[s] no right to consider.’’ (Internal quotation
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State v. Dabate
marks omitted.) State v. Ciullo, 314 Conn. 28, 37–38,
100 A.3d 779 (2014). ‘‘When making closing arguments
to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined precisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument.’’ (Internal
quotation marks omitted.) State v. Rowe, 279 Conn. 139,
158,
900 A.2d 1276 (2006).
Turning to the specific comments, we first agree with
the state’s contention that the prosecutor’s comment
that the victim claimed the defendant was stealing
money from their family was proper because the purpose for which it was made was consistent with the
trial court’s limited ruling. As the trial court emphasized
to the jury immediately after rebuttal and even before
the instructions to the jury on the law: ‘‘[T]here was an
exhibit that was offered for a very limited purpose
. . . . It should not be considered as substantive evidence if that’s what he did. It’s simply being offered to
show the state of mind of the [victim] in this case.’’ As
to the prosecutor’s comment concerning the decline of
the value of truth in American society, although close
to the line, it was not improper. This comment was
directly tied to a request that the jury be guided by the
evidence that it finds truthful, and the next sentences
in the prosecutor’s argument were: ‘‘[T]he truth still
means something in this room. And a trial is a search
for the truth.’’14
The prosecutor’s comments concerning the intelligence and potential gullibility of the jury are even more
14
Although we conclude that this comment does not reach the level of
impropriety, we nevertheless find it extraneous and unnecessarily close to
impropriety. Prosecutors would be well advised to avoid any discussion of
either politics or religion before the jury. See, e.g., State v. Ceballos, 266
Conn. 364, 382–83, 392–93,
832 A.2d 14 (2003) (impropriety when prosecutor
made religiously charged statement during summation), overruled in part
on other grounds by State v. Douglas C., 345 Conn. 421,
285 A.3d 1067 (2022).
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State v. Dabate
troubling. It is not improper for a prosecutor to appeal
to jurors’ common sense in their assessment of the
evidence. See, e.g., State v. Diaz, supra,348 Conn. 774
(‘‘the prosecutor’s argument did not appeal to the jurors’
passions or emotions but, instead, asked [them] to use
their common sense and experience to infer that an
innocent man accused of the crimes charged would
have exhibited some outrage or anger on the witness
stand’’); State v. Courtney G., 339 Conn. 328, 348,
260
A.3d 1152 (2021) (prosecutor properly ‘‘asked the jurors
to assess the defendant’s credibility in light of his
demeanor on the witness stand and implicitly urged
[them] to infer, on the basis of their common sense and
experience, that an innocent man falsely accused of
sexually assaulting a child would have exhibited outrage while testifying’’). Courts are divided, however,
with respect to the propriety of comments suggesting
that the jury would have to be gullible or unintelligent
to accept the defendant’s theory of the case. Compare
United States v. Drummond, 481 F.2d 62, 64 (2d Cir.
1973) (it was improper for prosecutor to describe defendant’s testimony as ‘‘so riddled with lies it insults the
intelligence of [the] intelligent people sitting on the
jury’’ (internal quotation marks omitted)), and People
v. Sanchez, 228 Cal. App. 4th 1517, 1529–30, 1532,
176
Cal. Rptr. 3d 517 (2014) (prosecutor’s comment during
rebuttal argument that defendant was hoping that at
least one juror would be ‘‘ ‘gullible enough’ ’’ and ‘‘ ‘naive
enough’ ’’ to accept his arguments and to let him ‘‘go
home and have a good laugh at your expense’’ constituted prosecutorial impropriety because it was designed
to intimidate and was unsupported by any facts in evidence), with Carr v. State, 385 So. 3d 1300, 1305–1306
(Miss. App. 2024) (it was not improper for prosecutor
to tell jury, ‘‘ ‘you’re smarter than that, so don’t get
caught up, don’t be running down rabbit holes where
they’re going to try to send you’ ’’). See also, e.g., State v.
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State v. Dabate
Singh, supra, 259 Conn. 721–22 (prosecutor improperly
inflamed jurors’ passions by stating, ‘‘then you’re not
the jurors I thought I selected when I started all of this’’
(internal quotation marks omitted)).
Having reviewed the record, we conclude that it was
improper for the prosecutor to state that the defendant
was counting on the jury to be gullible, lazy, and unintelligent.15 We disagree with the state’s argument that its
theory that the defendant had fabricated the home invasion constituted an invitation to comment about the
defendant’s alleged perception of the jury. Although it
is proper for the prosecutor to remind the jury that it
has a duty to base its verdict on the evidence, it is
improper to insinuate that the jury is unintelligent or
lazy if it agrees with the defendant’s theory of the case.
Such comments improperly inflame jurors’ passions
and ‘‘have the effect of diverting the jury’s attention
from [its] duty to decide the case on the evidence.’’
(Internal quotation marks omitted.) State v. Pouncey,
241 Conn. 802, 811,
699 A.2d 901 (1997). The inflammatory aspect of these comments was compounded by
the fact that the prosecutor made them during rebuttal
summation, which meant that the defense could not
respond. We, therefore, conclude that the prosecutor
improperly conveyed the message that the defendant
wanted the jury to act in a manner inconsistent with
its oath by acting unintelligently and lazily, and that a
verdict in the defendant’s favor would demonstrate that
15
We agree with the state that the prosecutor properly appealed to the
common sense of the jurors in asking them to consider the inconsistencies
in the defendant’s testimony, which were highlighted through the detectives’
testimony and through the electronic evidence, such as the Fitbit data. See,
e.g., State v. Pedro S., 87 Conn. App. 183, 198,
865 A.2d 1177 (asking jury
to ‘‘[w]eigh everything [it] heard and [to] use [its] common sense’’ and stating
that it was ‘‘in the state’s best interest for [the jurors] to use that common
sense’’ were arguments properly based on contradictions in defendant’s
testimony, rather than on prosecutor’s opinion (internal quotation marks
omitted)), cert. denied, 273 Conn. 924,
871 A.2d 1033 (2005).
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State v. Dabate
the jury had violated its oath to rely solely on the evidence before it.16
5
Comment on the Defendant’s Exercise
of His Right to Counsel
The defendant also claims that the prosecutor
improperly commented on the defendant’s exercise of
his fifth amendment right to counsel in questioning him
about a newspaper article that was published the day
after the crime. Relying on State v. Angel T., 292 Conn.
262,
973 A.2d 1207 (2009), the defendant argues that
the prosecutor’s suggestion that he had a duty, in
response to a newspaper article about the crime, to
explain to the police why he should not be a suspect
was prosecutorial impropriety because it violated his
right to counsel. The state contends that Angel T. is
distinguishable and that the prosecutor validly impeached
the defendant with his prearrest and pre-Miranda silence,
rather than commenting on the fact that the defendant
had retained counsel. We agree with the state.
16
The defendant additionally argues that the prosecutor was impugning
the role of defense counsel by implying that defense counsel was attempting
to deceive the jury. We disagree. ‘‘[T]he prosecutor is expected to refrain
from impugning, directly or through implication, the integrity or institutional
role of defense counsel. . . . There is a distinction [however] between
argument that disparages the integrity or role of defense counsel and argument that disparages a theory of defense. . . . Moreover, not every use of
rhetorical language is improper. . . . There is ample room, in the heat of
argument, for the prosecutor to challenge vigorously the arguments made
by defense counsel.’’ (Internal quotation marks omitted.) State v. James,
141 Conn. App. 124, 149,
60 A.3d 1011, cert. denied,
308 Conn. 932,
64 A.3d
331 (2013). The prosecutor did not refer to defense counsel, imply that his
strategy was to deceive the jury, or ‘‘directly or by implication [denigrate]
the integrity or institutional role of defense counsel.’’ (Internal quotation
marks omitted.) State v. Swain, 101 Conn. App. 253, 274,
921 A.2d 712, cert.
denied, 283 Conn. 909,
928 A.2d 539 (2007). Therefore, we conclude that
the prosecutor was not impugning defense counsel or the role of defense
counsel in the process.
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State v. Dabate
The record reveals the following additional relevant
facts. A local newspaper published an article about the
crime on December 24, 2015, the day after the murder.
See D. Moran, ‘‘Wife Dead, Husband Injured After Incident on Birchview Drive in Ellington,’’ Hartford Courant,
December 24, 2015. The newspaper article included a
statement from a local police official that there was
no ongoing threat to public safety in the wake of the
apparent home invasion. Id. After reading this article,
the defendant inferred that he was the only suspect in
the case. At trial, the defendant introduced the article
into evidence to explain why, in the days after the murder, he had discussed the case with various persons but
withheld some information from others. During cross-examination, the prosecutor asked the defendant if,
after reading the article and thinking it was ‘‘inaccurate,’’
he ‘‘called those two very gentle state police detectives
to say what’s going on?’’ The trial court sustained defense
counsel’s objection to this question, finding that it was
improper because the prosecutor was ‘‘well aware that
[the defendant] had the advice of counsel at that point
in time’’ after the hospital interview during which he
had invoked his right to counsel.
In Doyle v. Ohio, 426 U.S. 610, 619,
96 S. Ct. 2240,
49
L. Ed. 2d 91 (1976), ‘‘the United States Supreme Court
held that the impeachment of a defendant through evidence of his silence following his arrest and receipt
of Miranda warnings violates due process.’’ State v.
Patrick M., 344 Conn. 565, 582,
280 A.3d 461 (2022).
‘‘Use of a defendant’s pre-Miranda silence, by contrast,
does not raise the same constitutional concerns: evidence of prearrest, and specifically pre-Miranda, silence
is admissible to impeach the testimony of a defendant
who testifies at trial, since the rule of Doyle . . . is
predicated on the defendant’s reliance on the implicit
promise of Miranda warnings.’’ (Citation omitted; inter-
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nal quotation marks omitted.) Id., 583; see State v. Angel
T., supra,292 Conn. 286 n.19.
The invocation of the right to counsel is, however,
distinct from pre-Miranda silence. In Angel T., this
court held that the prosecutor improperly encouraged
the jury to infer the defendant’s guilt from evidence that
the defendant, who had been represented by counsel
before the initiation of custodial interrogation or adversarial criminal proceedings, did not help with the police
investigation of the sexual abuse of his niece. State v.
Angel T., supra,292 Conn. 264. While cross-examining
the defendant, the prosecutor elicited testimony that
the defendant had retained counsel and, then, discussed
that testimony during summation. Id., 290. The prosecutor made multiple references to the fact that the detectives could not reach the defendant to interview him
and, during summation, pointed out that the defendant
had not taken advantage of an opportunity to help with
the investigation. See id., 266–71. This court held that
the prosecutor had violated the defendant’s due process
rights by penalizing him for asserting his right against
self-incrimination. Id., 274, 286. We clarified that our
conclusion was ‘‘based solely on the prejudicial effect
of the admission of, and argument about, the evidence
that the defendant apparently had retained counsel in
connection with the police investigation of the victim’s
allegations . . . because evidence of prearrest, and
specifically pre-Miranda, silence is admissible to
impeach the testimony of a defendant who testifies at
trial . . . .’’ (Emphasis added.) Id., 286 n.19; see State
v. Coccomo, 302 Conn. 664, 674–75,
31 A.3d 1012 (2011)
(Angel T. stands for proposition that ‘‘the admission of
ambiguous evidence of consciousness of guilt was
improper’’).
In contrast to Angel T., the question at issue in the
present case was the proper impeachment of the defendant with evidence of his prearrest and pre-Miranda
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State v. Dabate
silence. See State v. Patrick M., supra, 344 Conn. 589.
At the time of the defendant’s proposed silence, he was
not yet under arrest and had not received Miranda
warnings. The prosecutor in the present case did not
argue—expressly or implicitly—that the defendant’s
retention of counsel demonstrated consciousness of
guilt. We disagree with the defendant’s argument that
the prosecutor’s question was improper because it would
have elicited testimony that the defendant did not contact the police because he had been advised by his
attorney not to do so, as there is no indication in the
record that this information was disclosed to the jury
or that the prosecutor impliedly or explicitly referenced
this fact.17 Instead, because the defendant had not yet
received Miranda warnings or arrested when he read
the newspaper article, his choice to testify at trial as a
putative victim of the crime rendered his pre-Miranda
silence admissible for impeachment purposes. See, e.g.,
State v. Santiago, 100 Conn. App. 236, 247,
917 A.2d
1051 (‘‘the prosecutor . . . did not improperly appeal
to the jury to infer guilt from the defendant’s having
contacted an attorney and having received the counsel
of an attorney’’), cert. denied, 284 Conn. 933,
935 A.2d
152 (2007), and cert. denied,
284 Conn. 933,
935 A.2d
153 (2007). Indeed, a question that may elicit a response
from a defendant that he or she had relied on the advice
of counsel is not per se improper. Rather, it is improper
for a prosecutor to rely on that answer in support of
an inference that the defendant engaged counsel only
because he is guilty. Accordingly, we conclude that the
prosecutor’s question about the defendant’s failure to
contact the police after the publication of the newspaper article was not prosecutorial impropriety.
6
Violation of Disclosure Requirements
Finally, the defendant claims that the prosecutor vio-
17
The defendant did not testify on this point because the trial court sustained defense counsel’s immediate objection to the prosecutor’s question.
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State v. Dabate
lated Brady v. Maryland, supra,373 U.S. 87, and our
rules of practice by failing to disclose the anticipated
testimony of Charles Johndro, an emergency medicine
physician, as an expert witness.18 We conclude that the
prosecutor’s failure to disclose Johndro’s anticipated
testimony was not a Brady violation, but the nondisclosure did violate the prosecutor’s obligations under the
rules of practice.
The record reveals the following additional relevant
facts. Johndro, who had been disclosed as a potential
expert witness, testified about his treatment of the
defendant in the hospital emergency department on the
day of the murder, including his clinical impression
that the defendant’s injuries were consistent with self-inflicted wounds. The opinion that the defendant’s wounds
were self-inflicted was not in the hospital records that
were disclosed. Although Johndro had reported his
opinion to the prosecutor months prior to the trial, the
prosecutor did not disclose that opinion to the defense
and never asked Johndro to put this opinion in writing;
hence, the defense did not know of this opinion until
Johndro testified. Defense counsel moved to strike
Johndro’s testimony, claiming that the failure to disclose Johndro’s opinion constituted a Brady violation.
The trial court granted the motion to strike the testimony after finding a Brady violation and instructed the
jury not to consider that portion of Johndro’s testimony.
It is axiomatic that the three essential components
of a Brady claim are (1) ‘‘[t]he evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching,’’19 (2) ‘‘that evidence
18
The defendant also claims that the state breached its disclosure obligations with respect to Payette, one of the investigating state police detectives.
Because the defendant concedes that he was not harmed by this failure to
disclose, we need not analyze the prosecutor’s conduct with respect to
Payette for purposes of a prosecutorial impropriety claim.
19
‘‘The purpose of requiring the state to disclose impeachment evidence
to a criminal defendant is to ensure that the jury knows the facts that might
motivate a witness in giving testimony . . . .’’ (Internal quotation marks
omitted.) State v. Floyd, 253 Conn. 700, 744,
756 A.2d 799 (2000).
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State v. Dabate
must have been suppressed by the [s]tate, either [wilfully] or inadvertently,’’ and (3) ‘‘prejudice must have
ensued.’’ (Internal quotation marks omitted.) State v.
Ortiz, supra,280 Conn. 717. Brady’s requirement of
disclosure rests with the prosecutor because of ‘‘the
special role played by the American prosecutor in the
search for truth in criminal trials.’’ Strickler v. Greene,
527 U.S. 263, 281,
119 S. Ct. 1936,
144 L. Ed. 2d 286
(1999). We agree with the state that the prosecutor’s
failure to disclose Johndro’s testimony that the defendant’s injuries appeared to be self-inflicted was not a
Brady violation because it was not favorable to the
defendant and, thus, not exculpatory in nature. We note,
however, that tactics such as the one engaged in by the
prosecutor in the present case are inconsistent with a
prosecutor’s obligation to seek justice consistent with
the law and the evidence. Indeed, the central purpose
of a criminal trial is ‘‘to ascertain the truth which is the
sine qua non of a fair trial.’’ Estes v. Texas, 381 U.S.
532, 540,
85 S. Ct. 1628,
14 L. Ed. 2d 543 (1965).
Although the prosecutor’s failure to disclose Johndro’s
opinion that the defendant’s wounds appeared to be
self-inflicted was not a Brady violation, he nevertheless
failed to comply with his obligations under Practice
Book § 40-11 (a), which provides in relevant part: ‘‘Upon
written request by a defendant filed in accordance with
Section 41-5 and without requiring any order of the
judicial authority, the prosecuting authority . . . shall
promptly, but no later than forty-five days from the
filing of the request . . . disclose in writing the existence of, provide photocopies of, and allow the defendant in accordance with Section 40-7, to inspect, copy,
photograph and have reasonable tests made on any of
the following items:
…
‘‘(3) Any reports or statements of experts made in
connection with the offense charged including results
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34 MARCH, 2025 351 Conn. 428
State v. Dabate
of physical and mental examinations and of scientific
tests, experiments or comparisons which are material
to the preparation of the defense or are intended for
use by the prosecuting authority as evidence in chief
at the trial . . . .’’ (Emphasis added.)
We have explained that ‘‘[t]he purpose of criminal
discovery is to prevent surprise and to afford the parties
a reasonable opportunity to prepare for trial.’’ State v.
Festo, 181 Conn. 254, 265,
435 A.2d 38 (1980). When
required, the state must comply with disclosure requirements to ensure that the defendant has an adequate
opportunity to prepare a defense. See State v. Jackson,
334 Conn. 793, 813,
224 A.3d 886 (2020) (explaining
that state’s failure to timely disclose expert witness
‘‘rendered the defendant’s opportunity to prepare a
meaningful defense effectively nonexistent’’). Indeed,
‘‘[c]riminal discovery is not a game. It is integral to the
quest for truth and the fair adjudication of guilt or
innocence.’’ Taylor v. Illinois, 484 U.S. 400, 419,
108 S.
Ct. 646,
98 L. Ed. 2d 798 (1988) (Brennan, J., dissenting).
The record indicates that the state was aware of
Johndro’s anticipated testimony for months prior to the
trial and failed to disclose it to the defendant, even
though it would have been material to the preparation
of the defense and was introduced as evidence in the
state’s case-in-chief.20 At oral argument before this court,
the state attributed this failure to the fact that Johndro’s
20
‘‘The history of Practice Book § 40-11 . . . reveals that the phrase ‘material to the preparation of the defense’ in § 40-11 (a) (1) was intentionally
included in order to broaden the scope of our rules of discovery with respect
to information that must be furnished by the state to a criminal defendant.’’
State v. Andres C., 349 Conn. 300, 351,
315 A.3d 1014, (McDonald, J., concurring), cert. denied, U.S. ,
145 S. Ct. 602,
220 L. Ed. 2d 236 (2024).
Affording a defendant the opportunity to obtain discovery that is ‘‘material
to the preparation of the defense’’ is a significant provision of our rules of
criminal practice because it ‘‘may provide critical evidence that a defendant
may not be able to obtain otherwise. This language is critical to effectuating
the goal of robust discovery of material information in the possession of
the state to ensure that the criminal trial is a search for the truth.’’ Id.
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351 Conn. 428 MARCH, 2025 35
State v. Dabate
opinion had not been written down. In its brief, the
state further contends that it had no duty, under the
rules of practice or the Connecticut constitution, ‘‘to
memorialize Johndro’s inculpatory opinion and [to] disclose it to the defendant.’’21 Johndro’s testimony, however, was consistent with the state’s theory of the case
that the defendant had staged the home invasion, which,
accordingly, contradicted the defendant’s third-party
culpability theory. Because the prosecutor failed to disclose such information, the trial court correctly sanctioned the state and precluded the prosecutor from
using that evidence. Cf. Cavallaro v. Hospital of Saint
Raphael, 92 Conn. App. 59, 72,
882 A.2d 1254 (expert
testimony was precluded as sanction for party’s late
disclosure of treating physician as expert witness), cert.
denied, 276 Conn. 926,
888 A.2d 93 (2005). We conclude
that the prosecutor’s failure to disclose Johndro’s opinion regarding the nature of the defendant’s injuries constituted a disclosure violation under the rules of
practice and, as such, constituted an additional instance
of prosecutorial impropriety.
B
Analysis of Whether the Prosecutorial Improprieties
Deprived the Defendant of His Right
to a Fair Trial
We now must consider whether the previously identified prosecutorial improprieties deprived the defendant
of a fair trial. These improprieties include (1) violating
the trial court’s order not to use the word ‘‘Cheshire,’’
21
Although Practice Book § 40-11 (a) (3) does not specify that oral statements must be disclosed, the state risks violating the defendant’s due process
rights by choosing not to write down material information in order to circumvent its discovery obligations. See State v. Hargett, 343 Conn. 604, 634,
641–42, 275 A.3d 601 (2022) (indicating that late disclosure implicates ‘‘fundamental protections of due process’’ and emphasizing that ‘‘the state has a
duty to defendants, to the public, and to the courts to act with diligence in
the disclosure of evidence’’).
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State v. Dabate
(2) asking the defendant whether he was planning to
kill the victim while on the Vermont trip, (3) stating that
the defendant was counting on the jury to be gullible,
unintelligent, and lazy, and (4) failing to disclose Johndro’s
anticipated testimony in accordance with the rules of
practice.
‘‘To prove prosecutorial [impropriety], the defendant
must demonstrate substantial prejudice. . . . In order
to demonstrate this, the defendant must establish that
the trial as a whole was fundamentally unfair and that
the [impropriety] so infected the trial with unfairness
as to make the conviction a denial of due process. . . .
In weighing the significance of an instance of prosecutorial impropriety, a reviewing court must consider the
entire context of the trial, and [t]he question of whether
the defendant has been prejudiced by prosecutorial
[impropriety] . . . depends on whether there is a reasonable likelihood that the jury’s verdict would have
been different [in the absence of] the sum total of the
improprieties.’’22 (Internal quotation marks omitted.) State
v. Hinds, 344 Conn. 541, 563,
280 A.3d 446 (2022).
It is well established that, in determining whether
prosecutorial impropriety deprived the defendant of a
22
The defendant argues in his brief that this court should apply the harmless error standard to his prosecutorial impropriety claim. We disagree.
We analyze a claim of prosecutorial impropriety under the harmless error
standard only when it infringes on a specifically enumerated constitutional
right, rather than on the more generalized due process right to a fair trial.
See, e.g., State v. A. M., 324 Conn. 190, 200,
152 A.3d 49 (2016) (‘‘[b]ecause
the defendant’s claim . . . implicated his fifth amendment right to remain
silent, we apply the harmless error standard . . . rather than the general
due process standard from [State v. Williams, 204 Conn. 523,
529 A.2d 653
(1987)]’’); see also State v. A. M., supra, 199 (‘‘If the defendant raises [a
specifically enumerated constitutional right], the defendant initially has the
burden to establish that a constitutional right was violated. . . . If the
defendant establishes the violation, however, the burden shifts to the state to
prove that the violation was harmless beyond a reasonable doubt.’’ (Citation
omitted.)). Nevertheless, the harmless error analysis is inherent in the question of whether the defendant’s right to a fair trial was violated. See State
v. Williams, supra, 550 (‘‘[n]or is this a case in which the state’s evidence
was so strong that we can say that there was harmless error’’).
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State v. Dabate
fair trial, this court applies the factors set forth in State
v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987).
‘‘These factors include [1] the extent to which the
[impropriety] was invited by defense conduct or argument, [2] the severity of the [impropriety], [3] the frequency of the [impropriety], [4] the centrality of the
[impropriety] to the critical issues in the case, [5] the
strength of the curative measures adopted, and [6] the
strength of the state’s case.’’ (Internal quotation marks
omitted.) State v. Sinclair, 332 Conn. 204, 237,
210 A.3d
509 (2022).
As to the first Williams factor, we conclude that
the prosecutor’s improprieties were not invited by the
defense. With respect to the prosecutor’s question related
to the Vermont trip, the state argues that the defendant
had ‘‘opened the door on direct examination’’ when he
testified at length regarding his relationship with the
victim and their trip to Vermont prior to the prosecutor’s
question on cross-examination. We disagree. The defendant did not invite improper conduct simply by discussing his relationship with the victim and their trip
to Vermont. See, e.g., State v. Ceballos, 266 Conn. 364,
409,
832 A.2d 14 (2003) (‘‘we reject the notion that,
standing alone, a legitimate defense theory can be
viewed as inviting improper conduct on the part of the
state’s attorney’’), overruled in part on other grounds
by State v. Douglas C., 345 Conn. 421,
285 A.3d 1067
(2022); see also State v. Ceballos, supra, 409–10 (defense
counsel did not invite prosecutor’s improper comment
by describing defendant as good person who emigrated
to the United States for better life). Similarly, the disclosure violation regarding Johndro, the prosecutor’s comments regarding Cheshire, and the defendant’s relying
on the jury to be gullible, lazy, and unintelligent, were
also unprompted and were not invited by the defendant
or defense counsel.
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State v. Dabate
As to the second Williams factor, we conclude that,
when viewed in the context of the entire trial, the improprieties were not sufficiently severe or frequent to
deprive the defendant of a fair trial. We determined that
there were four instances of prosecutorial impropriety.
When considered in context of the 130 witnesses and
the 600 exhibits presented during the five week trial, the
harm was less pronounced insofar as the improprieties
occurred infrequently. See, e.g., State v. O’Brien-Veader,
supra, 318 Conn. 550 (‘‘these two improprieties were
confined to the cross-examination of [the expert witness] and, therefore, were not frequent’’). But cf. State v.
Angel T., supra, 292 Conn. 289–90 (prosecutor’s eliciting
improper evidence and discussing that evidence at length
during opening and rebuttal summations was deemed
frequent). We note, however, that it is clear from the
record that the prosecutor intentionally disregarded
court orders and tried to undermine the authority and
rulings of the trial court. The prosecutor’s disregard of
the court’s ruling on, for example, the use of the highly
inflammatory reference to ‘‘Cheshire’’ was not necessary and created the risk of violating the defendant’s
due process rights.
The next Williams factor requires us to determine
the centrality of the improprieties to the critical issues
in the case, namely, whether the defendant shot the
victim and then staged a home invasion to cover up the
murder. Each of the four improprieties related to the
theory of the state’s case, but none, except for the commentsregarding the gullibility of the jury, was relied on
by the prosecutor during summation to support the
state’s argument.23 See, e.g., State v. O’Brien-Veader,
23
Although the prosecutor briefly mentioned the Vermont trip during
summation, he did not suggest that the defendant intended to kill the victim
during the trip. Rather, the prosecutor mentioned the Vermont trip to raise
the issue of whether the victim would still have gone on the trip if, consistent
with his testimony, he had informed the victim, prior to the trip, about his
affair and of the unexpected pregnancy.
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351 Conn. 428 MARCH, 2025 39
State v. Dabate
supra, 318 Conn. 550 (relying on prosecutor’s summation to assess strength of state’s case and centrality of
improprieties). Although the disclosure violation related
to evidence that undercut the defendant’s theory that
a third party had committed the home invasion, namely,
Johndro’s testimony that the defendant’s wounds appeared
to be self-inflicted, the trial court struck that portion
of the testimony and instructed the jury not to consider
it. The disclosure violation, therefore, neither benefited
the state nor harmed the defendant. Thus, although the
various improprieties related to the critical issues in this
case, their effect was insufficiently severe to deprive
the defendant of a fair trial.
Whether the trial court implemented any curative
measures is another Williams factor. Here, the numerous curative measures that the trial court implemented
when the defense objected to improper questions or
comments served to mitigate any adverse effect of these
improprieties. When each of the improprieties occurred,
the trial court either sustained the defense’s objection,
specified to the jury how it should consider the evidence, or excused the jury from the courtroom to consider the issue further. These contemporaneous
instructions, which we presume the jury followed,
served to mitigate any potential harm that the defendant
might otherwise have suffered from these improprieties. See, e.g., State v. Courtney G., supra, 339 Conn.
364 (‘‘[g]iven the isolated nature of the prosecutor’s
comment and the trial court’s prompt and effective
curative instruction, which specifically targeted the
prosecutorial impropriety, we conclude that [the]
impropriety was not frequent or severe and was cured
by the trial court’’ (footnote omitted)); State v. O’Brien-Veader, supra, 318 Conn. 550 (‘‘to the extent there was
any harm, it was mitigated by the trial court’s prompt
curative instruction directing the jury to disregard the
improper questions, which we presume the jury fol-
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State v. Dabate
lowed’’); cf. State v. Ceballos, supra,266 Conn. 413 (‘‘a
general [curative] instruction does not have the same
curative effect as a charge directed at a specific impropriety, particularly when the [impropriety] has been
more than an isolated occurrence’’). It is important to
observe that, although these curative measures served
to mitigate the potential harm from the improprieties,
they do not diminish the troubling nature of the improprieties themselves. Indeed, had the trial court not been
diligent in ensuring that the prosecutor’s comments did
not stray beyond permissible bounds, there may well
have been additional instances of impropriety.24
As to the final Williams factor, the strength of the
state’s case, we conclude that the state’s case was very
strong and not ‘‘overshadowed by’’ the prosecutor’s
improprieties.25 (Internal quotation marks omitted.) State
v. Courtney G., supra, 339 Conn. 366. A substantial array
of electronic and physical evidence provided circumstantial support for the state’s theory of the case and
corroborated the testimony of the state’s witnesses.
See, e.g., State v. Thompson, 266 Conn. 440, 482–83,
832 A.2d 626 (2003) (strength of state’s case was not
diminished by circumstantial nature of evidence). That
evidence, including the victim’s Facebook activity and
the data from her Fitbit, demonstrated to the jury that
the victim was alive at the time that the defendant
claimed that she had been murdered by a third party.
The state also presented evidence that the defendant
24
We also note the admirable manner in which the trial court conducted
the trial. It immediately and consistently implemented curative actions that
protected the defendant’s right to a fair trial from a prosecutor whose
advocacy was often on the line of impropriety.
25
We emphasize that none of the Williams factors is determinative on its
own. In regard to the final Williams factor, the strength of the state’s case,
we emphasize that a very strong case against a defendant does not always
compel a conclusion that the defendant’s right to a fair trial was not violated.
Despite concluding in this case that the state’s case was not overshadowed
by the improprieties, we acknowledge that there may be instances in which
the gravity of the impropriety can outweigh even the strongest case against
the defendant with respect to the fairness of the trial.
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State v. Dabate
had been testing his home security system on the day
of the murder and that he had never left his home that
day, contradicting his testimony that he had driven to
work that morning. Further, there was evidence that
police canines were unable to detect any scent trails
attributable to the presence of another person in the
house besides the defendant. Finally, the jury heard the
defendant’s own contradictory testimony, observed his
demeanor on the witness stand, and learned about his
motive to kill the victim. As opposed to cases that rest
solely on the credibility of the defendant and witnesses,
in the present case, the strength of the state’s physical
evidence, supported by evidence of the defendant’s
motive to murder the victim, substantially diminished
any potentially inflammatory effect the prosecutor’s
improprieties may otherwise have had on the jury. See,
e.g., State v. Hinds, supra,344 Conn. 565 n.12 (state’s
case was strong, despite ‘‘discrepancies and gaps’’ in
testimony of five eyewitnesses, when ‘‘there was considerable overlap in their testimony and . . . when
their accounts were combined with the forensic evidence and the defendant’s highly incriminating statements and conduct, it left no doubt as to the defendant’s
culpability for the victim’s murder’’); State v. Thompson, supra, 483 (state’s case was strong when ‘‘the physical evidence corroborated the incriminating testimony
of the state’s witnesses, and the defendant’s own statements and behavior offered further corroboration of
that evidence’’). Based on our review of the record,
there is not a reasonable likelihood that the jury’s verdict would have been different in the absence of the
prosecutorial improprieties. Applying each of the Williams factors, we conclude that the defendant has not
established that the trial as a whole was fundamentally
unfair such that he was deprived of a fair trial in violation of his due process rights.
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C
Supervisory Authority
The defendant next asks this court to exercise its
supervisory authority over the administration of justice
to reverse his conviction as a sanction for the prosecutorial improprieties that occurred at trial. He argues that
the exercise of our supervisory authority is warranted
because the prosecutor intentionally violated numerous
instructions by the trial court and these improprieties
occurred near the end of the trial. He contends that,
because of when they occurred, the improprieties were
more harmful and reduced the likelihood that the trial
court would have declared a mistrial. Although the four
identified prosecutorial improprieties demonstrate that
the prosecutor failed to live up to his duty as ‘‘a high
public officer, representing the people of the [s]tate
. . . seek[ing] impartial justice for the guilty as much
as for the innocent’’; (internal quotation marks omitted.)
State v. Ciullo, supra, 314 Conn. 37–38; we are not
persuaded that they warrant reversal of the defendant’s
conviction under our supervisory authority.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice.’’ (Internal quotation marks omitted.) State v.
Elson, 311 Conn. 726, 764,
91 A.3d 862 (2014). We will
exercise our supervisory authority to reverse a conviction ‘‘only in the rare case [in which] fairness and justice
demand it. . . . [The issue at hand must be] of [the]
utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.’’ (Internal quotation marks
omitted.) State v. King, 350 Conn. 303, 335–36,
324 A.3d
81 (2024); see also id., 335 (describing two broader
categories of cases in which this court exercises its
supervisory authority).
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State v. Dabate
‘‘[W]e exercise our supervisory authority in [the prosecutorial impropriety] context to redress repeated and
deliberate [improper conduct] by a prosecutor seeking
to increase the likelihood of conviction even though
that conduct does not necessarily require reversal as a
due process violation. . . . [W]e pay particular attention to the fact that the prosecutor knew or should have
known that the conduct was improper and was part of
a pattern of similar [improper conduct] in other cases.
We exercise our supervisory authority in order to protect the rights of defendants and to maintain standards
among prosecutors throughout the judicial system
rather than to redress the unfairness of a particular
trial.’’ State v. Payne, supra, 260 Conn. 451–52.
Whether to reverse a conviction under our supervisory authority requires the balancing of various interests, namely, ‘‘the extent of prejudice to the defendant;
the emotional trauma to the victims or others likely to
result from reliving their experiences at a new trial;26 the
practical problems of memory loss and unavailability
of witnesses after much time has elapsed; and the availability of other sanctions for such [improper conduct].’’
(Footnote added; internal quotation marks omitted.)
State v. Pouncey, supra,241 Conn. 813. Additionally, a
trial court’s ruling on prosecutorial impropriety and
whether it has risen to the level of harmful error ‘‘is
entitled to weight because of the vantage point from
26
We note that this interest largely refers to victims who would be required
to testify at a new trial, as opposed to those who may generally be impacted
by the reliving of this traumatic experience, such as the victim’s family. See
State v. Pouncey, supra,241 Conn. 815 and n.11 (discussing emotional trauma
in regard to victim who would have to testify again).
Nevertheless, this interest, although previously discussed in various cases,
should be applied sparingly and is typically not dispositive of the supervisory
authority analysis. As we noted in Payne: ‘‘Any time those affected by a
violent crime are forced to relive their experiences in a new trial, the emotional trauma is significant.’’ State v. Payne, supra,260 Conn. 464. Therefore,
this interest almost always cuts against the defendant in such a broad manner
that its usefulness in a supervisory authority analysis is limited. As such,
we decline to address it in our analysis in the present case.
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State v. Dabate
which [the trial court] can observe and evaluate the
circumstances of the trial.’’ State v. Glenn, 194 Conn.
483, 493,
481 A.2d 741 (1984). After balancing these
interests, we conclude that a new trial is not warranted
in the present case.
First, the prosecutorial improprieties in the present
case did not significantly prejudice the defendant. The
state had a strong case that was well supported by the
testimony of various witnesses and experts, and electronic evidence, such as the Fitbit data and the home
security system, which contradicted the defendant’s
testimony that there had been a home invasion. The
state’s evidence established that the defendant had fabricated the home invasion story and had intentionally
killed the victim. The improprieties in the present case
did not serve to strengthen or corroborate the state’s
evidence such that they ‘‘increased the possibility that
the defendant was convicted on the basis of either inferences not grounded on facts in evidence or a perceived
criminal predisposition.’’ State v. Payne, supra,260
Conn. 464. Additionally, the level of prejudice was significantly diminished, as the trial court sustained objections, removed the jury from the courtroom, and gave
curative instructions in response to the prosecutor’s
improper conduct.
Second, the practical problems of memory loss and
unavailability of witnesses are not particularly significant in the present case. The victim’s murder occurred
in 2015, and the case was tried in 2022. There is no
indication that the memories of testifying witnesses
have been severely impaired since the date of the crime
or the date of trial. See, e.g., State v. Santiago, 143
Conn. App. 26, 28–29, 50,
66 A.3d 520 (2013) (memory
loss was not significant factor when murder occurred
approximately fifteen years beforehand and trial occurred
approximately three years prior to Appellate Court’s
decision).
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State v. Dabate
Finally, we must consider the other available sanctions for the improper conduct. The prosecutor committed four instances of prosecutorial impropriety and was
reprimanded by the trial court on each occasion.27
Despite these improprieties, our analysis leads us to
the conclusion that the extreme remedy of reversal to
sanction the state or to deter other prosecutors is
unwarranted.
We acknowledge that the prosecutor’s conduct did
not meet the standard of professionalism expected of
prosecutors in the state and that he was admonished
multiple times by the trial court. This is particularly
notable because he is an experienced litigator who has
successfully prosecuted numerous cases and is the
state’s attorney for the judicial district of Tolland. See,
e.g., State v. Reynolds, 264 Conn. 1, 215,
836 A.2d 224
(2003), cert. denied, 541 U.S. 908,
124 S. Ct. 1614,
158
L. Ed. 2d 254 (2004). The state’s attorney is the chief
law enforcement officer in his or her jurisdiction and
is ‘‘the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that
justice shall be done.’’ (Internal quotation marks omitted.) Stricker v. Greene, supra, 527 U.S. 281. Indeed, in
a court of law, state’s attorneys are not only representatives of the state but are also the state and represent
the societal interests of its people. Considered constitutional officers, state’s attorneys are often referred to
27
Although this court has previously considered instances of deliberate
impropriety by a particular prosecutor across a series of cases when
determining whether to exercise our supervisory authority; see State v.
O’Brien-Veader, supra, 318 Conn. 551 n.24; such a pattern of impropriety
is not a necessary prerequisite to the exercise of our supervisory authority
because it would undermine the cardinal principle ‘‘that our supervisory
[authority] must be flexible and that [its] application must be determined
by the interest of justice.’’ State v. Simmons, 188 Conn. App. 813, 849 n.16,
205 A.3d 569 (2019).
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State v. Dabate
as ministers of justice or as occupying a quasi-judicial
position. See, e.g., State v. Livingston, 22 Conn. App.
216, 224,
577 A.2d 734, cert. denied,
216 Conn. 812,
580
A.2d 63 (1990). Given the high office they occupy, this
court and the people of Connecticut rightly expect that
‘‘[c]ases brought on behalf of the [state] should be conducted with a dignity worthy of the client.’’ (Internal
quotation marks omitted.) State v. Couture, 194 Conn.
530, 567,
482 A.2d 300 (1984) (Healey, J., dissenting),
cert. denied, 469 U.S. 1192,
105 S. Ct. 967,
83 L. Ed. 2d
971 (1985).
We disapprove of the improprieties committed by the
prosecutor during the trial of this case in strong and
unqualified terms and expect our message to be taken
with the utmost seriousness by prosecutors. We nevertheless conclude that these four instances of impropriety do not impact the perceived fairness of the judicial
system as a whole and do not warrant the extraordinary
remedy of reversal under our supervisory authority over
the administration of justice.
II
ADMISSIBILITY OF FITBIT EVIDENCE
The defendant next challenges the admission of data
from the victim’s Fitbit following a Porter hearing. See
State v. Porter, 241 Conn. 57, 80–90,
698 A.2d 739 (1997),
cert. denied, 523 U.S. 1058,
118 S. Ct. 1384,
140 L. Ed.
2d 645 (1998). He claims that the Fitbit evidence is
unreliable and cannot be accurately measured. He
argues that the state’s expert witness, Diaz, did not have
the requisite expertise or technological background to
explain the operation of the Fitbit, rendering this evidence inadmissible under Porter. The state counters
that the Fitbit evidence was admissible without a Porter
hearing or, in the alternative, that the trial court properly exercised its discretion in admitting the evidence
because Diaz’ testimony satisfied the Porter factors. We
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State v. Dabate
agree that the trial court did not abuse its discretion
by admitting the data from the victim’s Fitbit.
The following additional facts are relevant to this
claim. Before trial, the defendant moved to preclude
records from the victim’s Fitbit, which had registered
the victim’s movements on the morning of the murder.
During a Porter hearing, the state introduced evidence
and testimony from Diaz. At the conclusion of the hearing, the trial court denied the defendant’s motion to
preclude the Fitbit evidence and found that Diaz’ testimony ‘‘established that the Fitbit device had been tested
extensively, the [research] had been subjected to peer
review, the device was generally accepted in the scientific research community, the device was accurate, and
the device had been developed for extrajudicial purposes.’’ In addition, the court relied on Lorraine v.
Markel American Ins. Co., 241 F.R.D. 534, 545 (D. Md.
2007), to conclude that ‘‘electronically stored evidence
may be authenticated by someone with personal knowledge of authorship or personal knowledge of how that
type of exhibit is routinely made.’’ Accordingly, the
court allowed the state to introduce expert testimony
from Diaz about the operation and accuracy of Fitbit
One, the Fitbit model that the victim wore on the day
of the murder.
We begin with our standard of review and the relevant
legal principles. ‘‘It is axiomatic that [t]he trial court’s
ruling on the admissibility of evidence is entitled to
great deference. In this regard, the trial court is vested
with wide discretion in determining the admissibility
of evidence. . . . Accordingly, [t]he trial court’s ruling
on evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion.’’
(Internal quotation marks omitted.) State v. Raynor,
337 Conn. 527, 540,
254 A.3d 874 (2020); see Lynch v.
State, 348 Conn. 478, 528,
308 A.3d 1 (2024).
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State v. Dabate
‘‘In Porter, this court followed the United States
Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis
. . . . A Porter analysis involves a two part inquiry that
assesses the reliability and relevance of the witness’
methods. . . . First, the party offering the expert testimony must show that the expert’s methods for reaching
his conclusion are reliable. A nonexhaustive list of factors for the court to consider include: general acceptance in the relevant scientific community; whether the
methodology underlying the scientific evidence has
been tested and subjected to peer review; the known
or potential rate of error; the prestige and background
of the expert witness supporting the evidence; the
extent to which the technique at issue relies [on] subjective judgments made by the expert rather than on objectively verifiable criteria; whether the expert can present
and explain the data and methodology underlying the
testimony in a manner that assists the jury in drawing
conclusions therefrom; and whether the technique or
methodology was developed solely for purposes of litigation. . . . Second, the proposed scientific testimony
must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid
in the abstract. . . . Put another way, the proponent
of scientific evidence must establish that the specific
scientific testimony at issue is, in fact, derived from
and based [on] . . . [scientifically valid] methodology. . . .
‘‘[C]onsistent with the Daubert test . . . the focus
of a validity assessment must be solely on principles
and methodology, not on the conclusions that they generate. . . . So long as the methodology underlying a
scientific opinion has the requisite validity, the testi-
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State v. Dabate
mony derived from that methodology meets the Daubert threshold for admissibility, even if the judge
disagrees with the ultimate opinion arising from that
methodology, and even if there are other methodologies
that might lead to contrary conclusions. . . . Accordingly, although the trial court properly serves a gatekeeper function to ensure that the evidence is sufficiently
reliable . . . it should . . . deem scientific evidence
inadmissible only when the methodology underlying
such evidence is . . . incapable of helping the fact
finder determine a fact in dispute.’’ (Citations omitted;
internal quotation marks omitted.) Lynch v. State,
supra, 348 Conn. 528–29.
We conclude that the trial court did not abuse its
discretion in applying the relevant Porter factors and
finding the data from the victim’s Fitbit sufficiently
reliable to be admissible scientific evidence.28 The court
reasonably credited Diaz’ testimony about his clinical
research, which was funded through a grant from the
National Institutes of Health, to establish the accuracy
of Fitbit devices, and, specifically, Fitbit One, the Fitbit
model that the victim wore on the day of the murder.
Diaz, who is the director of the Wearable Device Reading Center at Columbia University Medical Center,
spoke extensively about his research, describing the
‘‘validation study’’ and its finding that the Fitbit device
is very accurate at measuring steps; indeed, it is more
accurate than a research grade device, the Actical, at
measuring both steps and energy expenditure. Diaz also
described the publication and peer review process that
supported the validation study. Diaz explained his
28
The state argues that evidence from the victim’s Fitbit constituted electronic records and was admissible without a Porter hearing. Having concluded that the trial court did not abuse its discretion when it admitted the
data from the victim’s Fitbit after a Porter hearing, we need not address
this argument. But cf. State v. Burch, 398 Wis. 2d 1, 18–20,
961 N.W.2d 314
(2021) (trial court did not abuse its discretion when it admitted Fitbit data
without expert testimony to establish reliability of underlying technology),
cert. denied, U.S. , 142 S. Ct. 811,
211 L. Ed. 2d 503 (2022).
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State v. Dabate
review of the many other published studies regarding
the accuracy rate of Fitbit One. Diaz indicated that the
most accurate measurement is obtained when the Fitbit
is worn on the hip, as the victim in the present case
wore hers. Although he did not test the specific Fitbit
worn by the victim, the trial court nonetheless allowed
Diaz to offer expert testimony as to the accuracy of
Fitbit devices in general.
The defendant argues that Diaz did not establish the
reliability of the Fitbit evidence because he could not
explain the Fitbit’s proprietary internal algorithm that
translates the voltage into steps. We disagree. An expert
witness does not need knowledge of proprietary information to establish the reliability of data generated by
an electronic device.29 See, e.g., United States v. Morgan, 45 F.4th 192, 203 (D.C. Cir.) (‘‘Even if [the expert
witness] could not explain the inner workings of the
software that generated the [drive test maps], he could
[ensure] the reliability of his drive test and the maps it
generated through other means. . . . His inability to
explain a proprietary algorithm did not pose a categorical bar to a finding of reliability.’’), cert. denied,
U.S. , 143 S. Ct. 510,
214 L. Ed. 2d 290 (2022); United
States v. Chiaradio, 684 F.3d 265, 277–78 (1st Cir.)
(expert witness had sufficient specialized experience
to establish reliability of computer program developed
by Federal Bureau of Investigation as investigatory tool,
even though he was not programmer, did not know
program’s authors, and never had seen program’s
source code), cert. denied, 568 U.S. 1004,
133 S. Ct. 589,
184 L. Ed. 2d 386 (2012); State v. Foreman,
288 Conn.
684, 725, 728–29,
954 A.2d 135 (2008) (concluding that
29
The defendant additionally argues that the Fitbit evidence is unreliable
because Diaz’ testimony was based on an insufficient amount of data; he
reviewed only a single page of data, which included a list of minute-byminute times in one column and steps in the other column. We agree with
the state that this argument is a challenge to the weight of the evidence,
rather than to its admissibility.
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State v. Dabate
state met foundational standards, despite expert witnesses’ lack of knowledge regarding proprietary information). Diaz’ testimony established that most fitness
trackers operate in a similar fashion, in that they sense
motion in three planes and then apply algorithms to
those detected motions to calculate the step count or
exercise minutes.
Given the ample evidence in the record to support the
trial court’s findings that Diaz’ professional credentials
qualified him as an expert, that his Fitbit study had been
subject to peer review, that the Fitbit was generally
accepted in the scientific research community and had
been tested extensively and deemed accurate, and that
the Fitbit had been developed for extrajudicial purposes, we conclude that the trial court did not abuse its
discretion by admitting the data from the victim’s Fitbit.
III
VIOLATION OF MIRANDA RIGHTS CLAIM
The defendant’s final claim is that the trial court
improperly denied his motion to suppress his statement
to the police during the hospital interview. He argues
that the interview was a custodial interrogation conducted without Miranda warnings. In support of this
claim, the defendant (1) challenges two of the trial
court’s factual findings underlying its determination
that he was not in custody for purposes of Miranda
during the interview, and (2) argues that the trial court
improperly determined as a matter of law that he was
not in custody for purposes of Miranda. We disagree.
Following an evidentiary hearing, the trial court
found the following facts relevant to the defendant’s
motion to suppress. On December 23, 2015, at approximately 11:40 a.m., the defendant arrived at Hartford
Hospital’s emergency department seeking treatment for
multiple injuries sustained during an alleged home inva-
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State v. Dabate
sion. At the hospital, he was placed in an observation
room for his injuries, which consisted of several small,
shallow leg puncture wounds, a chest wound, and a
cut finger. Shortly after 1 p.m., Detectives Payette and
Langemin from the Connecticut State Police arrived to
interview the defendant. The detectives were dressed
in plain khaki pants and polo shirts, but were identifiable as state police officers. They were also armed but
did not display their weapons. Upon identifying themselves, they began to question the defendant about what
had happened at his home, believing that he was a
victim or witness.
After approximately one hour of questioning, the defendant and the detectives moved to a second room. The
detectives asked the defendant to describe the events
of the morning. He was ‘‘responsive, giving every indication that he wanted to tell the detectives what had
happened.’’ The defendant was not under the influence
of alcohol, medication, or narcotics, and ‘‘did not appear
to be emotional.’’ The defendant’s hospital room door
was never locked, although it was occasionally closed.
The defendant was neither restrained nor handcuffed,
although he was attached to an IV for a portion of the
interview. The defendant responded appropriately to
questions and spontaneously volunteered information.
The hospital staff interrupted the interview several
times to provide medical care to the defendant.
During the interview, a nurse stated in front of the
defendant: ‘‘His family is here.’’ Within earshot of the
defendant, a physician also asked the detectives if the
defendant was leaving with them. The detectives
responded that the defendant was leaving with ‘‘[h]is
family, who is going to be here. I think they went out
to get a coffee or something like that.’’ During the interview, the defendant disclosed that he was involved in
an extramarital affair and that his mistress was having
his child. He also stated that he did not want his family
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State v. Dabate
to hear certain information that had been elicited during
the interview.
The detectives prepared a written statement. The
defendant read the written statement, making corrections and adding additional details to it. The detectives
and the defendant then reviewed the statement at least
three additional times before the defendant signed it.
At approximately 7 p.m., the hospital staff informed
the defendant that he would be discharged from the
hospital. After he was discharged, hospital personnel
provided a third room for the defendant and the detectives to continue their conversations. In this third room,
the detectives began to question the defendant about
certain inconsistencies in his written statement. While
in the third room, one of the detectives again stated
that the defendant’s ‘‘family is right down the hall.’’ After
approximately thirty minutes, the defendant stated: ‘‘I
didn’t think I had to ask for a lawyer.’’ Soon thereafter,
he said: ‘‘[D]o I have to ask for a lawyer now?’’ When
the detectives continued to question him, the defendant
stated: ‘‘I’m gonna need to get a lawyer.’’ At that point,
the detectives stopped their questioning. The detectives
did not arrest the defendant, and he left the hospital.
After the evidentiary hearing, the trial court denied
in part the defendant’s motion to suppress but granted
it with respect to the statements the defendant made
in the third room. The court applied a totality of the
circumstances analysis and found that the defendant’s
statements were part of a noncustodial and voluntary
interview. The court found that ‘‘[t]he defendant did
not appear to be emotional’’ and that ‘‘the detectives
did not employ threats, tricks, ruses, or lies’’ in their
interview of the defendant. The court further found that
the tone during the interview was conversational, the
defendant was not under the influence of alcohol, medication, or narcotics, the interview’s atmosphere was
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State v. Dabate
not intimidating, there was no evidence that the defendant was restrained during the interview, and the defendant was free to move about and to leave.
With respect to the statements the defendant made
after he had been moved to the third room, the trial
court, after finding that the defendant was not in custody and that the statements were voluntary, suppressed
them because the defendant had clearly invoked his
right to counsel when he indicated on three separate
occasions that he probably should speak with an
attorney.
Our review of the defendant’s claim is informed by
the following principles. ‘‘Although [a]ny [police] interview of [an individual] suspected of a crime . . . [has]
coercive aspects to it . . . only an interrogation that
occurs when a suspect is in custody heightens the risk
that statements obtained therefrom are not the product
of the suspect’s free choice. . . . This is so because
the coercion inherent in custodial interrogation blurs
the line between voluntary and involuntary statements
. . . . Thus, the court in Miranda was concerned with
protecting defendants against interrogations that take
place in a [police dominated] atmosphere, containing
inherently compelling pressures [that] work to undermine the individual’s will to resist and to compel [the
individual] to speak . . . . [P]olice officers [however]
are not required to administer Miranda warnings to
everyone whom they question . . . rather, they must
provide such warnings only to persons who are subject
to custodial interrogation. . . . To establish entitlement to Miranda warnings, therefore, the defendant
must satisfy two conditions, namely, that (1) [the defendant] was in custody when the statements were made,
and (2) the statements were obtained in response to
police questioning.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Mangual, 311 Conn. 182, 191–92,
85 A.3d 627 (2014).
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State v. Dabate
‘‘[C]ustody is a term of art that specifies circumstances that are thought generally to present a serious
danger of coercion. . . . In determining whether a person is in custody in this sense . . . the United States
Supreme Court has adopted an objective, reasonable
person test . . . the initial step [of which] is to ascertain whether, in light of the objective circumstances of
the interrogation . . . a reasonable person [would not]
have felt . . . at liberty to terminate the interrogation
and [to] leave. . . . Determining whether an individual’s freedom of movement [has been] curtailed, however, is simply the first step in the analysis, not the last.
Not all restraints on freedom of movement amount to
custody for purposes of Miranda. [Accordingly, the
United States Supreme Court has] decline[d] to accord
talismanic power to the [freedom of movement] inquiry
. . . and [has] instead asked the additional question [of]
whether the relevant environment presents the same
inherently coercive pressures as the type of station
house questioning at issue in Miranda.’’ (Citations omitted; internal quotation marks omitted.) Id., 193.
In considering whether a defendant was in custody
for Miranda purposes, we scrupulously examine the
record to ensure that the trial court’s factual findings
are supported by substantial evidence. See, e.g., id. 197.
‘‘[W]e are bound to accept the factual findings of the
trial court unless they are clearly erroneous’’ but have
‘‘plenary review over the ultimate issue of custody.’’ Id.
A
Factual Findings
The defendant challenges a number of the factual
findings underlying the trial court’s custody determination. First, the defendant challenges the finding that he
‘‘did not appear to be emotional.’’ He claims that this
finding is contradicted by the fact that he asked the
hospital for drugs ‘‘to help him calm down’’ and that
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State v. Dabate
he was experiencing a panic attack that ‘‘shows he was
emotionally and mentally on edge and fearful of being
alone . . . .’’ Second, the defendant challenges the
findings that ‘‘the detectives did not employ any tricks
or ruses, and [that] the defendant was aware his family
was present.’’ The defendant claims that the detectives
withheld the fact that his family was present to ‘‘isolate
the frightened defendant from his family,’’ and, because
he felt alone, he was ‘‘mentally and emotionally unlikely
to ask [the detectives] to leave.’’ We conclude that there
was ample evidence in the record to support the trial
court’s factual findings.
The trial court based its finding that the defendant
‘‘did not appear to be emotional’’ on the detectives’
testimony and on the audio recording of the defendant’s
interview, in which he displayed little emotion while
describing the victim’s murder. Although the defendant
argues that his request for medication to calm him
down, along with a panic attack that he experienced
while left alone, contradict this factual finding, we are
not persuaded that the court’s finding was clearly erroneous. The court not only relied on the detectives’ testimony but also reviewed the actual audio recording of
the interview with the defendant in making this determination. We are not left with a definite and firm conviction that a mistake has been committed. Rather, ‘‘[i]t
is within the province of the trial court, when sitting
as the fact finder, to weigh the evidence presented and
[to] determine the credibility and effect to be given the
evidence.’’ (Internal quotation marks omitted.) State v.
Thompson, 305 Conn. 412, 435–36,
45 A.3d 605 (2012),
cert. denied, 568 U.S. 1146,
133 S. Ct. 988,
184 L. Ed.
2d 767 (2013); see State v. Lawrence,
282 Conn. 141,
156,
920 A.2d 236 (2007) (‘‘[w]e defer to the trial court’s
assessments concerning credibility, and, therefore, conclude that the evidence was sufficient to support the
trial court’s finding’’).
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State v. Dabate
Similarly, the trial court’s findings that the detectives
did not use any tricks or ruses, and that the defendant
was aware that his family was present are equally supported by the record. The recording of the hospital
interview indicates that the detectives, within earshot
of the defendant, stated to a nurse: ‘‘His family, who is
going to be here. I think they went out to get a coffee or
something like that.’’ The defendant’s apparent awareness
of his family’s presence is confirmed by his express
statement to the detectives that he did not want his
family to know some of the information regarding his
extramarital affair. We disagree with the defendant that
these findings were not supported by the record insofar
as the detectives lied to him by stating that his family
had left for coffee, as the audio recording of the interview shows that the detectives were told that the defendant’s family had arrived but were not told that they
had left for any reason. This argument is belied by the
ample evidence that the defendant knew that his family
was present and that the detectives did not use tricks
or ruses. Therefore, we conclude that the defendant’s
claims challenging the trial court’s factual findings are
without merit.30
B
Custody Determination
Finally, we turn to the defendant’s claim that he was
subject to a custodial interrogation without the required
Miranda warnings because he reasonably believed that
he was not free to leave the hospital room. The defendant relies on the Appellate Court’s decision in State
v. Garrison, 213 Conn. App. 786, 804–805,
278 A.3d 1085
(2022), rev’d, 350 Conn. 61,
323 A.3d 279 (2024). He
argues that the interview that took place in the present
30
We pause to note that, even if we were to agree with the defendant
that these factual findings were clearly erroneous, they ultimately played
only a slight role in the trial court’s determination that the defendant was
not in custody.
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case was more intense than that in Garrison because
it lasted more than six hours and offered ‘‘shorter and
fewer breaks in between.’’ In response, the state distinguishes this case from Garrison because the Appellate
Court’s decision in that case hinged on the fact that the
defendant was unable to leave the hospital until he was
sober, with five police officers present for the interview,
rather than two in the present case. We agree with
the state and conclude that the defendant was not in
custody when he was interviewed by the detectives at
the hospital.
In assessing the totality of the circumstances and
determining if an individual is in custody for purposes of
Miranda, we consider numerous nonexclusive factors:
‘‘(1) the nature, extent and duration of the questioning;
(2) whether the suspect was handcuffed or otherwise
physically restrained; (3) whether officers explained
that the suspect was free to leave or not under arrest;
(4) who initiated the encounter; (5) the location of the
interview; (6) the length of the detention; (7) the number
of officers in the immediate vicinity of the questioning;
(8) whether the officers were armed; (9) whether the
officers displayed their weapons or used force of any
other kind before or during questioning; and (10) the
degree to which the suspect was isolated from friends,
family and the public.’’ State v. Mangual, supra, 311
Conn. 196–97.
In a hospital setting, additional considerations inform
our determination of whether a defendant is in custody
while being questioned by the police. These include (1)
‘‘whether the police physically restrained the defendant
in any way or ordered the medical attendants to restrain
him physically,’’ (2) ‘‘whether the police took advantage
of an inherently coercive situation created by any physical restraint that the medical attendants may have
asserted against him for purposes of his treatment,’’ (3)
‘‘whether the defendant was able to converse with . . .
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State v. Dabate
other people, [to] express annoyance or [to] request
assistance from them,’’ (4) ‘‘the duration of the questioning,’’ (5) ‘‘whether the police took a criminal suspect
to the hospital from the scene of a crime, monitored
the patient’s stay, stationed themselves outside the
[hospital room] door, [or] arranged an extended treatment schedule with the doctors,’’ (6) ‘‘the time of day,’’
(7) ‘‘the mood and mode of the questioning,’’ (8)
‘‘whether there were indicia of formal arrest,’’ and (9)
‘‘the defendant’s age, intelligence and mental makeup.’’
(Internal quotation marks omitted.) State v. Jackson,
304 Conn. 383, 417–18,
40 A.3d 290 (2012).
In State v. Garrison, 350 Conn. 61,
323 A.3d 279
(2024), this court applied the factors discussed in Mangual and Jackson, and held that the defendant was not
in custody in his hospital room because a reasonable
person ‘‘would not have felt that there was a restraint
on his freedom of movement of the degree associated
with a formal arrest.’’ Id., 85. The defendant in Garrison
was hospitalized for an injury to his nose following a
physical altercation during which he had stabbed the
man who punched him. Id., 64. He was then questioned
for approximately one hour by five different police officers but did not receive Miranda warnings. Id., 65.
The defendant, whose blood alcohol content measured
0.217, was described as ‘‘alert, awake, and oriented’’;
(internal quotation marks omitted) id.; and responded
‘‘spontaneously, eagerly, and immediately, often launching
into long narratives of the event and having to be redirected and asked to slow down.’’ (Internal quotation
marks omitted.) Id., 74. The officers did not arrest the
defendant at the end of the hospital stay; id., 76; and
did not ask the medical staff to stay out of the room
or to stop administering the defendant’s treatment while
they spoke with him. Id., 81. The defendant was not kept
from friends or family; id., 80; and had the opportunity
to converse with, express annoyance at, and request
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60 MARCH, 2025 351 Conn. 428
State v. Dabate
assistance from the nurses and doctors. Id., 78. We,
therefore, concluded that the defendant was not restrained
to a degree associated with a formal arrest so as to
require Miranda warnings. Id., 85.
We conclude that the totality of the circumstances31
establishes that the defendant in the present case was
not in custody for purposes of Miranda because it is
clear from the record that a reasonable person would
have felt at liberty to terminate the interview. We find
most persuasive that the defendant acquiesced to each
interaction and gave every indication that he wanted
to tell the detectives what had happened. See State v.
Brandon, 345 Conn. 702, 739,
287 A.3d 71 (2022) (‘‘weight
[of fourth Mangual factor] is undercut . . . by the
defendant’s acquiescence to the meeting’’), cert. denied,
U.S. , 143 S. Ct. 2669,
216 L. Ed. 2d 1242 (2023).
This is particularly persuasive when there is no indication in the record that the defendant, who was never
restrained or handcuffed, was ever told that he was not
free to terminate the interview or that he was under
arrest; indeed, the detectives told him the opposite.32
31
This court’s practice has been to examine each individual factor in our
custody analysis. Despite doing so, however, we note that, at times, only a
few of the factors may be applicable and that even one factor may be
compelling enough to contravene or compel a finding of custody.
32
The defendant claims that, although he was told that he was legally free
to leave, he was never actually told that he was free to ask the detectives
to leave, which was ‘‘the way in which [the defendant] could end the interrogation.’’ We disagree. ‘‘[A] defendant need not be expressly informed that
he [is] free to leave in order for a court to conclude that the defendant has
failed to prove that an interrogation was custodial.’’ (Internal quotation
marks omitted.) State v. Brandon, supra,345 Conn. 736; see State v. Greenfield,
228 Conn. 62, 71–72 n.10,
634 A.2d 879 (1993) (‘‘[a]lthough the police
[did not expressly inform the defendant that he was free to leave at the
outset of the interview], the trial court could reasonably have found that
both [the police] and the defendant understood that their meeting was
consensual, and therefore the defendant did not need to be expressly
informed that he was free to leave’’). The detectives in the present case did
not need to expressly tell the defendant that he could ask them to leave
because they had informed him that he was free to leave.
The defendant also claims that he did not feel at liberty to leave because
one of the detectives told him, ‘‘sorry you can’t get up.’’ (Internal quotation
marks omitted.) When read in the context of the entire interview, however,
we disagree with the defendant’s characterization of the statement. During
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351 Conn. 428 MARCH, 2025 61
State v. Dabate
Additionally, this point severely undermines the strongest argument for a finding of custody: that the interview
lasted over a period of six hours. As evident from the
record, the defendant, for a majority of the interview,33
felt at ease and was comfortable sharing his story, even
pausing to clarify it or to add extraneous details. As
such, a reasonable person, and the defendant in this
case, would have felt at liberty to leave.
After reviewing the totality of the circumstances with
respect to the portion of the hospital interview that
took place prior to the defendant’s move to the third
room, we conclude that a reasonable person in the
defendant’s position would not have felt that there was
a restraint on his freedom of movement of the degree
associated with a formal arrest. As such, we agree with
the trial court’s determination that the defendant was
not in custody while at the hospital and that the detectives were not required to administer Miranda warnings
prior to interviewing him there.
The judgment is affirmed.
In this opinion the other justices concurred.
the suppression hearing, Langevin clarified that, after he went for a walk,
he reentered the defendant’s room and apologized because ‘‘[he] felt bad
that [the defendant] was what appeared to be restricted to the bed [due to
his injuries and his medical treatment].’’ This is supported by the fact that,
during the hospital interview, the defendant responded to Langevin’s comment by stating: ‘‘That’s okay. Thanks for coming back.’’ This interpretation
is also bolstered by the audio recording of the interview, which clearly
portrays Langevin’s expression of sympathy for the defendant.
33
We acknowledge that, during extended interactions, the tone of the
interaction may change, rising to the level of a custody finding when there
may not have previously been such a finding. See State v. Brandon, supra,345 Conn. 751 (D’Auria, J., concurring in part and concurring in the judgment). Given that the trial court ultimately suppressed the portion of the
interview that took place in the third room, we conclude that our totality
of the circumstances analysis makes clear that the tone of the interaction
did not change while the defendant remained in the first and second rooms.
This is evident given that the detectives did not begin to question the defendant regarding the inconsistencies in his story until they entered the
third room.
